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Sexual harassment is a form of discrimination. It is discriminatory treatment directed toward a person based on their sex or their gender. Sexual harassment is discriminatory harassment based upon the victim’s gender or sex. Harassment on the basis of sex is a violation of Section 703 of Title VII of the Civil Rights Act.
The Court has ruled that for sexual harassment to occur it must be discriminatory in nature, e.g., it would not have happened if it were not for the sex of the alleged victim. In addition to meet the threshold for a legal claim it must also have an adverse impact on the victim’s employment relationship, e.g., affect a condition, term or privilege of employment.
Although the law prohibits harassment based on any protected characteristics, it is not "sexual" harassment unless it occurs because of the victim's sex, (i.e., the offensive conduct would not have occurred "but for" the victim's sex).
Although most reported cases have dealt with harassment by men against women, both men and women are protected from sexual harassment under the law. Same sex harassment, committed by either men or women, also would appear to be prohibited under recent Supreme Court rulings.
In Oncale vs. Sundowner Offshore Services (1988) Supreme Court Opinion No. 96- 568 Justice Scalia said,
The central element needed to prove a same [or opposite] sex harassment case is that discrimination occurred because of the sex of the victim. "Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimination because of sex."
Scalia further stated, "We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of the victim's employment." He said, "Common sense and appropriate sensitivity to social context" are important in judges' and juries' evaluation of each case. For example, he said, a professional football player would not be harassed if his coach "smacks him on the buttocks as he heads onto the field," but the same behavior "would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office."
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
Title VII prohibits discrimination based on sex:
The E.E.O.C. has defined two types of sexual harassment in their Guidelines: "quid pro quo" and "hostile environment." "Quid pro quo harassment" occurs when "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual," (United States E.E.O.C. 2000b)."Hostile environment harassment" occurs when "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" (United States E.E.O.C. 2000b).
The E.E.O.C. recognizes two standards of liability for sexual harassment: A "Tangible Employment Action," and a "Hostile Environment" (United States E.E.O.C. 1999a).
Standard Type One: Harassment by a supervisor that results in a tangible employment action.
Tangible Employment Action
A tangible employment action is "a significant change in employment status." Unfulfilled threats are insufficient to meet the threshold. Characteristics of a tangible employment action include the means by which the supervisor brings the official power of the enterprise to bear on subordinates, as illustrated by the following:
Tangible employment actions examples:
Any employment action can qualify as "tangible" if it results in a significant change in a person's employment status. One example would be significantly changing an individual's duties in his or her existing job and allowing the employee to retain the same salary and benefits. Another example would be changing an employee's specific job duties or functions in such a way that his or her opportunities for future promotions or salary increases are blocked.
Standard Type Two: Hostile Environment
Conduct:
Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not "extremely serious."
A female employee alleges that her supervisor has made frequent derogatory comments about women. Specifically referring to female employees as "girls." This employee's allegation would be considered an act of discrimination based on sex covered by Title VII.
A female employee alleges that her male supervisor refused to grant her a promotion because she has refused to engage in sexual relations with him. This employee's allegation would be considered an act of discrimination based on sex covered by Title VII.
The principles involved here in these prohibitions continue to apply to race, color, religion or national origin.
When making a determination as to whether or not an allegation constitutes sexual harassment, the E.E.O.C. will examine the record in its entirety, considering all the circumstances involved. This would include evaluating the nature of the sexual advances and the specific context(s) within which the alleged incident(s) occurred. Each determination regarding the legality of a specific action will be made from the facts, on a case-by-case bias.
1. Employer liability: Conduct of supervisors
An employer is responsible for its acts, the acts of its agents and its supervisory employees with respect to sexual harassment regardless of whether the
The E.E.O.C. will examine the circumstances of the particular employment relationship and the job junctions performed by the individual when determining whether an individual is legally acting in either a supervisory or agency capacity.
2. Employer liability: Conduct between fellow employees
When considering conduct between coworkers, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knew or should have known that the conduct was occurring, unless the employer can show that it took immediate and appropriate corrective action.
An employer may also be responsible for the acts of non-employees when they engage in conduct that is sexual harassment toward its employees in the workplace if the employer (or its agents or supervisory employees) knew or should have known of the conduct and fails to take immediate and appropriate corrective action. The E.E.O.C. will consider the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees on a case-by-case basis.
Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as
If an employer grants employment opportunities or benefits because an individual employee submitted to the employer's sexual advances or requests for sexual favors, the employer may be liable for unlawful sex discrimination against other employees or applicants who were qualified but denied those employment opportunities or benefits.
The courts will find employers liable for sexual harassment if it is determined that the employer knew or should have known about the unlawful misconduct and allowed it to continue anyway. If, however, the employer can demonstrate that it took swift actions to stop the behavior promptly after learning of its occurrence, the courts will not hold the employer liable.
Examples of sexual harassment can include but are not limited to: Jokes, slurs, sexual comments, unwelcome and or unnecessary touching, pictures of a sexual nature, sexually graphic computer software and innuendoes (This list is not an all-inclusive list.)
Supreme Court Decisions On Sexual Harassment (Sex Discrimination) Cases
Hostile Environment
In Meritor Savings Bank v. Vinson (1986), the Supreme Court held that Mechelle Vinson’s working conditions constituted a hostile environment in violation of Title VII’s prohibition of sex discrimination. Vinson’s supervisor made repeated demands for sexual favors, usually at work, both during and after business hours. Vinson initially refused her employer’s sexual advances, but eventually acceded because she feared losing her job. She testified that he “fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.”
In Scott v. Sears, Roebuck & Co. (7th Cir.1986), a female employee was repeatedly propositioned and winked at by her supervisor. When she asked for assistance, he asked, “What will I get for it?” Co-workers slapped her buttocks and commented that she must moan and groan during sex. The court examined the evidence to see if “the demeaning conduct and sexual stereotyping cause[d] such anxiety and debilitation to the plaintiff that working conditions were ‘poisoned’ within the meaning of Title VII.” The court did not consider the environment sufficiently hostile.
In Andrews v. City of Philadelphia (3d Cir.1990), the court held that derogatory language directed at women and pornographic pictures of women serve as evidence of a hostile working environment.
In Ellison v. Brady (1990), the Supreme Court said, “We first note that the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct. See King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir.1990) ([a]lthough a single act can be enough…generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident”). Accord Andrews, 895 F.2d at 1484; Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2d Cir.9189); E.E.O.C. Compliance Manual, § 615, 3112, C at 3243 (CCH 1988). For example, in Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d 1503, 1510 (11th Cir.1989), the court held that two incidents in which a noose was found hung over an employee’s work station were sufficiently severe to constitute a jury question on a racially hostile environment.
Victim’s Perspective
In Ellison v. Brady (1990), the Supreme Court stated,
[5] Next, we believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. King, 898 F.2d at 537; E.E.O.C. Compliance Manual (CCH) § 615, 3112, C at 3242 (1988) (courts ‘should consider the victim’s perspective and stereotyped notions of acceptable behavior'). If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.
We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspective of men and women. Conduct that many men consider unobjectionable may offend many women. See, Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988) (‘A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such comments offensive'); Yates, 819 F.2d at 637, n. 2 ('men and women are vulnerable in different ways and offended by different behavior'). See also Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177, 1207-1208 (1990) (men tend to view some forms of sexual harassment as 'harmless social interactions to which only overly-sensitive women would object'); Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand.L.Rev. 1183, 1203 (1989) ('the characteristically male view depicts sexual harassment as comparatively harmless amusement').
We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without full appreciation of the social setting or the underlying threat of violence that a woman may perceive.
[6] In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Andrews, 895 F.2d at 1482 (sexual harassment must detrimentally affect a reasonable person of the same sex as the victim); Yates, 819 F.2d at 637 (adopting 'reasonable woman' standard set out in Rabidue, 805 F.2d 611, 626 (Keith, J. dissenting)); Comment, Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 Harv.L.Rev. 1449, 1459 (1984); cf. State v. Wanrow, 88 Wash.2d 221. 239-241, 559 P2d 548, 558-559 (1977) (en banc) (adopting reasonable woman standard for self defense).
We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men…Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to 'run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.' Henson v. Dundee, 682 F.2d 897, 902 (11 Cir.1982).
We note that the reasonable victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment. Well-intentioned compliments by co-workers or supervisors can form the basis of a sexual harassment cause of action if a reasonable victim of the same sex as the plaintiff would consider the comments sufficiently severe or pervasive enough to alter a condition of employment and create an abusive working environment"…”Title VII is aimed at the consequences or effects of an employment practice and not at the…motivation” of co-workers or employers…To avoid liability under Title VII, employers may have to educate and sensitize their workforce to eliminate conduct which a reasonable victim would consider unlawful sexual harassment.
In E.E.O.C. v. Hacienda Hotel (1989) the district court found and the Supreme Court upheld the finding that a hostile environment was created where the hotel’s male chief of engineering frequently made sexual comments and sexual advances to the maids, and where a female supervisor called her female employees “dog[s]” and “whore[s].”
Reasonable Person Standard
The E.E.O.C. states that:
In determining whether harassment is sufficiently severe or pervasive to create a hostile environment, the harasser's conduct should be evaluated from the objective standpoint of a "reasonable person." Title VII does not serve "as a vehicle for vindicating the petty slights suffered by the hypersensitive," Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784, 35 EPD 34, 766 (E.D. Wis. 1984). Thus if the challenged conduct would not substantially affect the work environment of a reasonable person, no violation should be found.
A "reasonable person" standard also should be applied to be a more basic determination of whether challenged conduct is of a sexual nature…a reasonable person would not consider a co-worker's invitations [to another coworker to join a group of employees who regularly socialized at dinner after work] sexual in nature, and on that basis as well no violation would be found.
This objective standard should not be applied in a vacuum, however. Consideration should be given to the context in which the alleged harassment took place. As the Sixth Circuit stated, the trier of fact must "adopt the perspective of a reasonable person's reaction to a similar environment under similar circumstances," Highlander v. K.F.C. National Management Co., 805 F. 2d 644, 650, 41 EPD 36,675 (6th Cir. 1986). ((United States E.E.O.C. 1990).
Same-Sex Harassment
In Oncale vs. Sundowner Offshore Services the Supreme Court ruled that federal law protects employees from being sexually harassed in the workplace from people of the same sex.
In his written opinion, No. 96-568, Justice Scalia said it was the conduct itself, and not the sex or motivation of the people involved, that determined whether sexual harassment amounted to "discrimination because of sex" within the meaning of Title VII of the Civil Rights Act of 1964. Sexual desire whether heterosexual or homosexual was not a necessary element of such a case, he said.
Scalia offered general examples of how a same-sex harassment claim might be shown to be discrimination; for instance, evidence of "general hostility" to the presence of people of the victim's sex in the workplace, or "direct comparative evidence" of how the accused harasser treated members of both sexes.
The central element needed to prove a same sex harassment case is that discrimination occurred because of the sex of the victim. "Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimination because of sex,'" Scalia said.
This phrase, discrimination because of sex, was addressed in Meritor Savings Bank vs. Vinson (1986). The Supreme Court held that sexual harassment so severe and pervasive as to alter the conditions of a victim's employment was a type of sex discrimination covered by law.
The Supreme Court also recently allowed a federal appeals court to try a case in which a teenage boy who wore an earring was harassed by coworkers on a municipal work crew in Belleville, Ill. for not being very masculine. If proven, this conduct would be considered discrimination on the basis of the boy's sex.
The Supreme Court has not opened the door for anti-homosexual discrimination. Plaintiffs must show they were discriminated against because of their gender not because of their sexual/relational orientation. The court has clearly stated that neither sexual orientation nor sexual attraction can be necessary elements of a sexual harassment claim.
Scalia further stated, "We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of the victim's employment." He said "common sense and appropriate sensitivity to social context" are important in judges' and juries' evaluation of each case. For example, he said, a professional football player would not be harassed if his coach "smacks him on the buttocks as he heads onto the field," but the same behavior "would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office."
en banc – refers to a session where the entire membership of the court will participate in the decision rather than a regular quorum.
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors E.E.O.C. http://www.eeoc.gov/policy/docs/harassment.html
E.E.O.C. Compliance Manual http://www.eeoc.gov/policy/compliance.html
Facts about sexual harassment http://www.eeoc.gov/types/sexual_harassment.html
Define sexual harassment and identify the two types that can occur in the workplace.
How are Quid Pro Quo types of sexual harassment different than Hostile Environment?
Can both types be present in the same complaint?
If so, how?
Describe the difference between sexual harassment that is sexual in nature versus gender harassment.
What can you do differently in your clinical supervision practice to create and maintain a workplace environment free from sexual harassment?