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Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment.
Sexual harassment is a form of Sex Discrimination that occurs in the workplace. Persons who are the victims of sexual harassment may sue under Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.), which prohibits sex discrimination in the workplace.
The federal courts did not recognize sexual harassment as a form of sex discrimination until the 1970s, because the problem originally was perceived as isolated incidents of flirtation in the workplace. Employers are now aware that they can be sued by the victims of workplace sexual harassment. The accusations of sexual harassment made by anita f. hill against Supreme Court Justice Clarence Thomas during his 1991 confirmation hearings also raised societal consciousness about this issue.
Courts and employers generally use the definition of sexual harassment contained in the guidelines of the U.S. Equal Employment Opportunity Commission (EEOC). This language has also formed the basis for most state laws prohibiting sexual harassment. The guidelines state:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals, or
- 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. (29 C.F.R. § 1604.11 )
A key part of the definition is the use of the word unwelcome. Unwelcome or uninvited conduct or communication of a sexual nature is prohibited; welcome or invited actions or words are not unlawful. Sexual or romantic interaction between consenting people at work may be offensive to observers or may violate company policy, but it is not sexual harassment.
The courts have generally concluded that a victim need not say or do a particular thing to indicate unwelcomeness. Instead, a court will review all of the circumstances to determine whether it was reasonably clear to the harasser that the conduct was unwelcome. The courts have recognized that victims may be afraid to express their discomfort if the harasser is their boss or is physically intimidating. Victims may be coerced into going along with sexual talk or activities because they believe they will be punished or fired if they protest. Consent can be given to a relationship and then withdrawn when the relationship ends. Once it is withdrawn, continued romantic or sexual words or actions are not protected by the past relationship and may be sexual harassment.
The law prohibits unwelcome "sexual" conduct and words or actions "of a sexual nature." Some conduct, such as hugging, may be sexual or nonsexual and must be evaluated in context. Sexual harassment may be physical, such as kissing, hugging, pinching, patting, grabbing, blocking the victim's path, leering or staring, or standing very close to the victim. It may also be verbal, which may be oral or written and could include requests
Same-Sex Sexual Harassment
Sexual harassment in the workplace is usually associated with a heterosexual employee making unwelcome sexual advances to another heterosexual employee of the opposite gender. There are also cases where a homosexual employee harasses an employee of the same sex. But can a heterosexual employee sexually harass another heterosexual employee of the same gender?
The Supreme Judicial Court of Massachusetts, in Melnychenko v. 84 Lumber Company, 424 Mass. 285, 676 N.E.2d 45 (1997), concluded that same-sex sexual harassment is prohibited under state law regardless of the sexual orientation of the parties.
Leonid Melnychenko and two other employees at a Massachusetts lumberyard were subjected to humiliating verbal and physical conduct by Richard Raab and two other employees. Raab loudly demanded sexual favors from the men, exposed himself, and simulated sexual acts. Eventually the three employees quit their jobs with the lumber company and sued, claiming that sexual harassment was the reason for their departure.
At trial, the judge concluded that Raab's actions were not "true romantic overtures to the plaintiffs, and that they were not inspired by lust or sexual desire." Raab, who was "physically violent and sadistic," sought to "degrade and humiliate" the men.
The trial judge and the Supreme Judicial Court agreed that Raab's behavior constituted sexual harassment because it interfered with the three plaintiffs' work performance by creating an intimidating, hostile, humiliating, and sexually offensive work environment. Raab's sexual orientation did not excuse the conduct. The unwelcome sexual advances and requests for sexual favors were more than lewd horseplay and raunchy talk. They constituted sexual harassment.
In a subsequent case involving charges of same-sex sexual harassment, the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d. 201 (U.S. 1998), that Title VII prohibits sexual harassment even when the harasser and target of harassment are of the same sex. Joseph Oncale worked for Sundowner Offshore Services on an oil platform in the Gulf of Mexico from August to November 1991. Oncale's supervisor and two co-workers forcibly subjected Oncale to humiliating sex-related actions in the presence of the rest of the crew. Oncale had even been threatened with rape. Oncale complained to other supervisors, but no remedial action was taken. Oncale eventually quit, requesting that Sundowner indicate that he voluntarily left due to sexual harassment and verbal abuse. He subsequently filed a Title VII action in the U.S. District Court for the Eastern District of Louisiana.
The Fifth Circuit ruled against Oncale, stating that the Title VII prohibition against sexual harassment does not include same-sex sexual harassment, even harassment as blatant as Oncale's supervisor exposing his penis and placing it on Oncale's body, and also, along with two co-workers, attacking Oncale in a shower and forcing a bar of soap into his anus while threatening rape. Justice Scalia wrote the opinion for a unanimous court that reversed the lower court. In a strongly worded opinion, he complained of the lack of common sense demonstrated by the lower courts that had hitherto excluded same-sex claims, and also those that had conditioned liability on a same-sex sexual harasser being gay or lesbian.
Black, Jessica. 1997. "Same-Sex Harassment—Employment Discrimination—Civil Rights." Massachusetts Law Review 82 (fall).
Pierce, Karla J. 2003. "Title VII and Same-Sex Sexual Harassment After Oncale—Uncertainty Lingers." Colorado Lawyer 32 (June).
Weizer, Paul I. 2002. Sexual Harassment: Cases, Case Studies, & Commentary. New York: P. Lang.
or demands for dates or sex, sexual jokes, comments about the victim's body or clothing, whistles, catcalls, or comments or questions about the victim's or harasser's social life or sexual life. Sexual harassment may also be visual, such as cartoons, pictures, or objects of a sexual nature.
The laws against sexual harassment are violated when "submission to such conduct is made either explicitly or implicitly a term or condition of…employment." This language refers to what is sometimes called quid pro quo sexual harassment, in which a victim's hire, job security, pay, receipt of benefits, or status depends on her or his response to a superior's sexual overtures, comments, or actions. The quid pro quo may be direct, as when a superior explicitly demands sexual favors and threatens firing if the demands are not met, or it may be indirect, as when a superior suggests that employment success depends on "personality" or "friendship" rather than competence.
Sexual harassment also occurs when sexual conduct or communication "unreasonably interfer[es] with an individual's work performance." Tangible loss of pay, benefits, or the job itself is not required for sexual harassment to be claimed and proven. Generally, occurrences must be significant or repeated or both for substantial interference to be established.
Clarence Thomas and Anita Hill Hearings
The issue of sexual harassment drew national attention during the 1991 Senate hearings on the confirmation of Clarence Thomas to the U.S. Supreme Court. Anita Faye Hill, a professor at the University of Oklahoma Law Center, accused Thomas of sexually harassing her when she worked for him at the U.S. Department of Education and the Equal Employment Opportunity Commission (EEOC) between 1981 and 1983. The public disclosure of the allegations resulted in nationally televised hearings before the Senate Judiciary Committee.
The hearings, which drew a large national viewing audience, raised questions about Thomas's behavior, Hill's credibility, and the nature of sexual harassment in the workplace. The demeanor of the 12 white male members of the Senate Judiciary Committee and the questions they asked Hill raised the ire of many women's groups, who saw in the senators' behavior an unwillingness to acknowledge the dynamics of sexual harassment.
Thomas, then a judge on the U.S. Court of Appeals for the District of Columbia, had been nominated by President george h. w. bush to fill the seat vacated by Justice Thurgood Marshall. Thomas's opponents, including many Democrats and interest groups, tried to block his nomination because they did not want Thomas, an outspoken conservative African American, replacing Marshall, an African American and one of the few remaining liberals on the Court. After questioning Thomas at length, the Judiciary Committee deadlocked 7–7 on whether to recommend the nominee to the full Senate and then sent the nomination to the floor without a recommendation. Nevertheless, it appeared that Thomas would win confirmation by a comfortable, though not necessarily large, margin.
Then on October 6, 1991, Anita Hill publicly accused Thomas of sexual harassment. The charges rocked the Senate. Hill had been contacted earlier by Senate staff members, and she told them of her allegations. The Judiciary Committee asked the Federal Bureau of Investigation (FBI) to talk to Hill and Thomas about the allegations. The FBI produced a report that was inconclusive, being largely a matter of "he said, she said." The allegations would probably never have come to public attention except that Hill's statement was leaked to National Public Radio (NPR). Once NPR broke the story, Thomas's confirmation was thrown into doubt. In response, the Judiciary Committee announced that Thomas and Hill would be given a chance to testify before the committee.
The Hill-Thomas hearings took place the weekend of October 11th. Hill testified that after she had refused to date Thomas, he had initiated a number of sexually oriented conversations, some of which alluded to pornographic films. She provided vivid details about these conversations, but her credibility was questioned by Thomas supporters who suggested, among other things, that Hill might have fantasized the conversations. Senator Arlen Specter (R-Pa.) interrogated Hill as if she were a criminal suspect and suggested that she might be charged with perjury. Other senators wondered why she had followed Thomas from the Education Department to the EEOC if he had sexually harassed her. She replied that the harassment seemingly had ended and that she was uncertain about the future of her job at Education.
Thomas forcefully denied all of Hill's allegations and portrayed himself as the victim of a racist attack. According to him, Hill's allegations were "charges that play into racist, bigoted stereotypes." He reminded the committee that historically, when African American men were lynched, they were almost always accused of sexual misconduct, and he characterized the hearings as a "high-tech lynching."
Thomas's impassioned defense proved to be effective. It not only disarmed his Democratic opponents on the committee, who in the opinion of many commentators failed to question Thomas effectively, but it also won him sympathy throughout the country. A New York Times/CBS News poll taken October 28, 1991, found that 58 percent of the respondents believed Thomas: only 24 percent believed Hill.
The committee also heard from witnesses who said that Hill had discussed the harassment with them during the time she worked for Thomas. Thomas's supporters produced several men as character references, one of whom alleged that Hill's statements were a product of romantic fantasy. Several women who would have testified that Thomas exhibited similar behavior with them either declined to testify after seeing the committee's grilling of Hill or were not called by the committee.
Thomas was confirmed two days after the hearings, on a vote of 52–48, the narrowest margin for a Supreme Court justice since 1888.
Thomas's confirmation did not end the controversy. Some commentators characterized the hearings as a perversion of the process and suggested that Hill's charges should have been aired in closed committee hearings. Others criticized Hill as a pawn of liberal and feminist interest groups that sought to derail Thomas's nomination by any means. Some critics also accused Hill of being an active participant in the move to defeat Thomas; they claimed that she was a Democrat who pretended to be a Republican so as to appear politically impartial.
Hill's defenders were outraged by the committee's treatment of her. They described her plight as typical of women who bring sexual harassment claims. Unless the woman has third-party testimony backing up her charges, the "he said, she said" scenario always favors the man. The senators' questioning of Hill's motivations was also evidence of how men fail to understand sexual harassment. Many of the senators saw her as either a liar, a publicity seeker, or an emotionally disturbed woman who fantasized the alleged incidents. In response, T-shirts appeared that stated "I believe Anita Hill." There was also concern that Hill's treatment might discourage women from reporting sexual harassment. The Thomas-Hill hearings were a watershed event in the discussion of sexual harassment.
Morrison, Toni, ed. 1992. Race-ing Justice, Engendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality. New York: Pantheon.
Ragan, Sandra L., et al, eds. 1996. The Lynching of Language: Gender, Politics, and Power in the Hill-Thomas Hearings. Urbana: Univ. of Illinois Press.
Siegel, Paul, ed. 1996. Outsiders Looking In: A Communication Perspective on the Hill/Thomas Hearings. Cresskill, N.J.: Hampton Press.
Smitherman, Geneva, ed. 1995. African American Women Speak Out on Anita Hill-Clarence Thomas. Detroit: Wayne State Univ. Press.
Unreasonable interference can occur between coworkers of equal status as well as between superiors and subordinates. The employer of the coworker may be legally liable for such harassment if the employer knows or should know about it and fails to take timely and appropriate responsive action.The sexual harassment lawsuit filed in 1994 by Paula Jones against President bill clinton highlighted this workplace issue. In 1991 Jones was an employee of the Arkansas Industrial Development Commission and Clinton was governor of Arkansas. Jones claimed that while working at an official conference at a Little Rock hotel, she was persuaded by a member of the Arkansas state police to visit the governor in a business suite at the hotel. She alleged that Clinton made sexual advances that she rejected. Jones also claimed that because she rejected his advances, her superiors dealt with her in a rude and hostile manner and changed her job duties.
Clinton denied the charges and sought to delay the lawsuit until after he left the presidency. The Supreme Court rejected this argument in Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), and he was forced to defend himself. In 1998 the federal district court dismissed her action, ruling that there was no proof that Jones was emotionally injured or punished in the workplace for rejecting Clinton's advances. Jones appealed this ruling but agreed to drop her lawsuit in return for $850,000. She also dropped her previous demand that Clinton apologize or make an admission of guilt.
The most far-reaching part of the EEOC definition is that dealing with a hostile or offensive working environment. The U.S. Supreme Court upheld the concept of a hostile work environment as actionable under the 1964 Civil Rights Act in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 49 (1986). The Court rejected a narrow reading of the statute, under which an employer could not be held liable for sexual harassment unless the employee's salary and promotions were affected by the actions.
In the Vinson case, plaintiff Michelle Vinson, an employee of Meritor Savings Bank, claimed that her male supervisor, Sidney Taylor, had sexually harassed her. Taylor made repeated demands for sexual favors, and the pair engaged in sexual relations at least 40 times. Vinson testified that she engaged in sexual relations because she feared losing her job if she refused. The harassment stopped after Vinson began a steady relationship with a boyfriend. One year later, Taylor fired Vinson for excessive use of medical leave. Although the bank had a procedure for reporting harassment, Vinson had not used it because it required her to report the alleged offenses to her supervisor—Taylor.
Justice william h. rehnquist, writing for the Court, established several basic principles for analyzing hostile environment cases. First, for sexual harassment to be actionable, it must be severe enough to change the conditions of the victim's employment and create an abusive working environment. Here, Rehnquist implied that isolated occurrences of harassment (such as the telling of a dirty joke or the display of a sexually explicit photograph) would not constitute a hostile work environment.
Second, Rehnquist made clear that there is a difference between voluntary behavior and welcome behavior. Noting that Vinson and Taylor's sexual relations were voluntary, Rehnquist rejected the conclusion that Vinson's willingness constituted a defense to sexual harassment. The critical issue was whether the sexual advances were welcome. If sexual advances are unwelcome, the inequality of power between a supervisor and subordinate strongly suggests that the employee engages in sexual relations out of fear.
Third, Rehnquist held that courts must view the totality of the circumstances when deciding the issue of welcomeness. In Vinson, however, the Court did not address the question of whose perspective should be used in determining whether certain behavior so substantially changes the work environment that it becomes abusive: should the standard be that of a reasonable man, a Reasonable Woman, or a reasonable person?
In Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991), federal district judge Howell Melton applied the reasonable woman test to determine if the work environment was abusive to women. He held that a reasonable woman exposed to the pictures of nude or partially nude women that were posted in the workplace and to the sexually demeaning remarks and jokes by male workers would find that the work environment at the shipyards was abusive. The totality of the circumstances would lead a reasonable woman to these conclusions.
The Ninth Circuit Court of Appeals echoed this reasoning in Ellison v. Brady, 924 F.2d 872 (1991). In Ellison, the court rejected the reasonable person standard in favor of the reasonable woman standard. The court believed that using the reasonable person standard would risk enforcing the prevailing level of discrimination because that standard would be male biased.
Even with the acceptance of the reasonable woman standard by the courts, the diversity of outcomes in harassment claims created confusion as to what constitutes harassment. In Harris v. Forklift Systems, 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 295 (1993), the Supreme Court attempted to clarify this issue. Teresa Harris had filed a discrimination claim based on the behavior of the company president, Charles Hardy. Hardy had insulted Harris and other women with demeaning references to their gender and with unwanted sexual innuendo.
The district court ruled that although Hardy's comments were sufficiently offensive to cause discomfort for a reasonable woman, they did not rise to the level of interfering with that woman's work performance. The court also held that Harris had not been injured by the comments.
The Supreme Court overruled the lower court, holding that courts must not focus their inquiry on concrete psychological harm, which is not required by Title VII of the Civil Rights Act. To maintain such a requirement would force employees to submit to discriminatory behavior until they were completely broken by it. So long as the workplace environment would reasonably be perceived as hostile or abusive, it did not need also to be psychologically injurious.
Thus, the plaintiff in a hostile work environment case must show that sexually harassing behavior is more than occasional, but need not document an abusive environment that causes actual psychological injury. The courts recognize that a hostile work environment will detract from employees' job performance, discourage employees from remaining in their positions, and keep employees from advancing in their careers. The Title VII guiding rule of workplace equality requires that employers prevent a hostile work environment.
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the Supreme Court sought to clarify the confusing state of sexual harassment law. It held that an employee could sue for damages for sexual harassment under Title VII even if the employee did not suffer any adverse job consequences, such as demotion or termination. The Court stated that under Title VII, an employee who refuses "unwelcome and threatening sexual advances of supervisor, yet suffers no adverse, tangible job consequences" may recover damages from an employer. The employee does not have to show that the employer was negligent or at fault for the supervisor's actions to recover damages. The Court based its new standard on principles of agency law. Agency law describes the responsibilities of employers and employees to each other and to third parties. The Court invoked the agency principle that makes employers liable for the torts of employees who act or speak on behalf of the employer and whose apparent authority the victimized employee relies upon.
The Court, however, also provided employers with more protection in Ellerth. If a supervisor has harassed an employee, but no tangible employment action is taken against the employee, the employer may present an Affirmative Defense. This defense includes a showing that the employer exercised reasonable care to prevent and correct sexually harassing behavior. A company's policy against sexual harassment would be relevant to demonstrate reasonable care. The defense also allows the employer to show that the employee had unreasonably failed to take advantage of the employer's anti-harassment procedures.
Ellerth gave employers an additional incentive to institute policies against sexual harassment. A first step is determining if a problem exists. Some companies conduct informal surveys of their employees concerning sexual harassment. In addition, employers often inspect the workplace for objectionable material, such as photographs of nude people or insensitive or explicit jokes with sexual connotations.
Employers typically include a policy against sexual harassment in personnel policies or employee handbooks. These policies use the EEOC definition of prohibited conduct as a guideline. The prohibited conduct must be stated in an understandable way.
A complaint procedure is typically part of the policy. Most employers recognize that a prompt and thorough investigation of a complaint, followed by appropriate disciplinary action, can minimize liability. These procedures usually specify to whom a victim of harassment can complain if the victim's supervisor is the alleged harasser. Companies also routinely train supervisors to recognize sexual harassment. Finally, some employers provide sexual harassment training for all their employees as a way of trying to improve workplace culture and behavior, as well as minimizing their legal liability.
Bingham, Clara and Laura Leedy Gansler. 2002. Class Action: The Story of Lois Jenson and the Landmark Case That Changed Sexual Harassment Law. Garden City, N.J.: Doubleday.
Crouch, Margaret A. 2001. Thinking About Sexual Harassment: A Guide for the Perplexed. New York: Oxford Univ. Press.
Foote, William E., and Jane Goodman-Delahunty. 2004. Evaluating Sexual Harassment: Psychological, Social, and Legal Considerations in Forensic Examinations. Washington, D.C.: American Psychological Association.
LeMoncheck, Linda. 1997. Sexual Harassment: A Debate. Lanham, Md.: Rowman & Littlefield.
n. unwanted sexual approaches (including touching, feeling, groping) and/or repeated unpleasant, degrading and/or sexist remarks directed toward an employee with the implied suggestion that the target's employment status, promotion or favorable treatment depend upon a positive response and/or "cooperation." Sexual harassment is a private nuisance, unfair labor practice, or, in some states, a civil wrong (tort) which may be the basis for a lawsuit against the individual who made the advances and against the employer who did not take steps to halt the harassment. A legal secretary recently won an award of more than $3 million against a prominent law firm for not controlling a partner notorious for his sexual harassment of female employees. (See: nuisance)