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Sexual Harassment and Employment Law

Table of Contents

A Brief Legal History of Sexual Harassment (back to top)

A single sentence made history on June 19, 1986, when Justice William H. Rehnquist penned these words for a unanimous U.S. Supreme Court:

"Without question, when a supervisor sexually harasses a subordinate because of a subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex."

This was the ruling in a case called Meritor Savings Bank, FSB v. Vinson. The ruling was historic because it was the first time the Supreme Court confirmed that employees could bring sexual harassment claims under Title VII of the Civil Rights Act of 1964.

Following Meritor, several important questions about the nature of sexual harassment were raised by attorneys and judges alike. Some of these questions have been resolved by later sexual harassment cases. Others remain outstanding. These questions include:

(1) Does Title VII prohibit sexual harassment that creates an "intimidating, hostile or offensive work environment" even if the employee hasn't been fired, demoted or suffered some other adverse impact on the job?
(2) Can an employer be held liable when a supervisor's actions create such an environment?
(3) What happens if the plaintiff has previously consented to the sexual demands?
(4) How does a court determine if a sexual advance is "unwelcomed?"
(5) Can an employer avoid liability by having a company policy against sexual harassment?
(6) Is the plaintiff's manner of dress or "sexual fantasies" relevant to the case?

Gradually, as the Supreme Court took more sexual harassment cases for review, some of these questions have been resolved or, at least, addressed. For example, in 1994 in Harris v. Fork-lift Systems, Inc., the Supreme Court found that the test for unwelcomeness in a sexual harassment case is what a "reasonable person" would find offensive, hostile or intimidating. And, the Court in Harris also noted that the offensive conduct did not have necessarily have to leave the employee psychologically damaged or unable to do their job. Thus, the Court found that:

 "[a] discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing their careers."

Therefore, so long as the working environment could reasonably be perceived, and is in fact perceived, as hostile or abusive, there is no need for the sexual harassment to be psychologically injurious. 

Then in 1998, three other sexual harassment cases addressed the issue regarding an employer's liability for sexual harassment. These cases included Faragher v. Boca Raton, Burlington Industries, Inc. v. Ellerth, and Gebser v. Vista Independent School Dist. In those cases, the Court answered the key question of how an employer is liable for the hostile work environment created by supervisors who sexually harass.

In Faragher and Burlington, the Court held that an employer is vicariously liable for the harassing conduct of a supervisor, even when the employer is unaware of the supervisor's behavior. The Court in Faragher did allow employers to escape liability in one of two ways. Namely, by showing that 1) the employer used reasonable care to prevent and correct any sexually harassing behavior and 2) the employee unreasonably failed to take advantage of opportunities to complain about the sexual harassment.  (Note that these defenses are not available to employers where the harassment “culminates in a tangible employment action” such as discharge or a demotion).

The case of Gebser addressed sexual harassment in schools. There, the Court modified the rules a bit, holding that a school district can only be held liable for sexual harassment of a student by a teacher if the school district had actual notice of the harassment and showed deliberate indifference to it.

Even with some of these issues resolved and others sidestepped, litigation in the area of sexual harassment continues to be a challenge for any attorney, whether he or she represents a plaintiff or defends an employer.

Title VII of the Civil Rights Act of 1964 (back to top)

Sexual harassment lawsuits are permitted by Title VII of the Civil Rights Act of 1964 and later amendments to the statute. The language of Title VII includes the following prohibition:

"[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual's ... sex."

Interpreting Title VII, "sexual harassment" may be thought of as one of many ways that an employer can discriminate against an employee on the basis of sex. There are others. When a company intentionally pays female employees less than male employees, it is discriminating on the basis of sex. Similarly, when a boss refuses to promote female employees beyond a certain level, he may be found liable for sex discrimination. In neither case is sexual harassment involved. Nevertheless, it's sex discrimination all the same, and just as illegal. A sexual harassment case, then, is just one type of sex-discrimination case with certain unique qualities.

To bring a sexual harassment lawsuit, a plaintiff must set forth certain essential facts which, taken together, constitute sexual harassment under the Title VII statute. These factual elements are what a plaintiff must prove to make a "prima facie case."

There is more than one way to make a prima facie case in a sexual harassment lawsuit.  Sometimes, the prima facie case can be direct evidence of intentional sex discrimination (e.g. testimony in which a supervisor admits that he harassed women because he views them as inferior). More often, though, plaintiffs are forced to make a primate facie case by creating an inference of intentional discrimination. This is because most supervisors are too savvy to confess to their reasons for harassing an employee. In these cases, the plaintiff must often use a combination of direct and circumstantial evidence to show the court that he or she has suffered some adverse employment action and that his or her employer took its action on the basis of sex.

EEOC Guidelines (back to top)

In formulating the elements of a prima facie case of sexual harassment, courts have relied on the 1980 federal Equal Employment Opportunity Commission's (EEOC) guidelines on sexual harassment. While EEOC guidelines are not binding upon the courts, many courts, including the United States Supreme Court, have deferred to the EEOC guidelines to resolve issues in sexual harassment cases.

The EEOC guidelines define sexual harassment as "[u]nwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature" 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 by an individual is used as the basis for employment decisions affecting such individual, or,"

(3) "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."

Types of Sexual Harrassment: Quid Pro Quo & Hostile Work Environment (back to top)

From the EEOC guidelines, the courts have identified two forms of sexual harassment. One is "quid pro quo" sexual harassment, where a supervisor demands sexual favors of a subordinate in exchange for tangible job benefits, such as hiring, promotion, job training or job retention (e.g., "If you go to bed with me, you'll get a promotion.").

The other form is when the sexual harassment creates a hostile work environment, in which the employee is subjected to verbal conduct (such as sexual innuendo, jokes and sexually derogatory remarks), physical touching or graphic displays of sexually oriented materials. This sexual harassment does not result in a tangible job detriment (e.g., the employee is not fired, demoted or not promoted as a result of the sexual harassment), but the psychological and emotional work environment of the employee is adversely affected. This hostile work environment can be created by a supervisor, or by coworkers, or even a nonemployee.

While these two forms of sexual harassment differ, the elements of the prima facie case in both are similar. These elements are:

(1) "The employee is a member of a protected group." In other words, a man or woman.

(2) "The employee has been subjected to "unwelcomed" sexual harassment." This means that a reasonable person would find the sexually harassing acts offensive and that the employee actually found the acts offensive.

(3) "The sexual harassment was based on sex." In other words, you would not have been sexually harassed but for your gender.

(4) "The sexual harassment or the employee's response to the sexual harassment affected "terms, conditions or privileges" of employment. " The harassment affected your ability to do your job or, in extreme cases, you felt it necessary to quit.

(5) "The employer was liable for the sexual harassment under respondeat superior." A legal term essentially meaning that the employer has no defenses to the charge of sexual harassment.

Damages (back to top)

Since the passage of the Civil Rights of 1991, Title VII now allows sexual harassment victims to collect from their employers not only back pay, lost wages and, if they had been fired or forced to leave, to be reinstated in their jobs, but also compensatory and punitive damages in a jury trial on those matters. These damages can encompass emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life.

The EEOC Process (back to top)

The EEOC enforces the Age Discrimination in Employment Act of 1967 (ADEA), Titles I and V of the Americans with Disabilities Act of 1990 (ADA), the Equal Pay Act of 1963 (EPA), Sections 501 and 505 of the Rehabilitation Act of 1973, and Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC Web site, http://www.eeoc.gov/ , has the text of these statutes as well as summary information on the groups and types of discriminatory practices covered by the statute.

Because all sexual harassment complaints fall under Title VII, any employee alleging sexual harassment must first go through the EEOC before filing a lawsuit. Your attorney may assist you in bringing a charge before your local EEOC District Office. In addition, you may contact the EEOC yourself by telephone, e-mail or in person.

Whether you contact the EEOC or a private attorney, the process for filing a sexual harassment claim will almost always begin with an interview. This initial interview will explore your basis for believing that you have been discriminated against on the basis of sex, specific details about the sexual harassment involved, and other information relevant to the suit. You should also be told what kinds of damages you may be able to receive for filing and the different legal standards that control the availability of the types of damages requested.

After your initial interview, a charge of discrimination is formally filed with the EEOC against the party, or parties, responsible for the sexual harassment. The EEOC will then proceed to conduct an investigation based on your allegations. This process may take several weeks. While this investigation is ongoing, you will have the opportunity to settle your claim by voluntarily participating in a mediation with your employer, hosted by the EEOC. The EEOC encourages mediation to settle disputes with as little cost and litigation as necessary. You will be permitted to bring your private attorney with you to this mediation. If you and your employer cannot settle your claim at mediation, then your case will move forward in the claims process.

If the EEOC determines that discrimination has, more likely than not, occurred, it may decide to bring suit against your employer on its own initiative. The EEOC does this in order to further the public interest in preventing employment discrimination. If, more often the case, the EEOC determines that discrimination has not, more like than not, occurred, it will notify you that you have a right to sue. When this occurs you will have a limited amount time in which to bring a lawsuit privately. At this point, the EEOC will no longer be involved in your case. Thus, you will need a private attorney to move forward with your claim.

A Simple Way to Think about All Sexual Harassment Cases (back to top)

There is a lot of law surrounding sexual harassment and just the volume of information on the subject alone can lead to confusion for employee's who have been sexually harassed. In this article, we've barely scratched the surface on the topic. At the end of the day, though, most of the commentary you'll read about legal elements and proof can be boiled down to one all-important question: Did the employer intentionally discriminate on the basis of an employee's sex? If the answer is "yes," then there is almost always a case to be made. Whether the case is an "easy" one or a "hard" one depends on the availability of proof. If you believe that this question can be answered affirmatively in your situation, you should contact your local EEOC office or an attorney.

Who are the Victims? Who are the Harassers? (back to top)

According to the EEOC’s website, the EEOC received 12,025 charges of sexual harassment in 2006. Of those charges, 15.4% were filed by males. But these are just charges. More disturbing is the product of some surveys, which have estimated the percentage of women being sexually harassed in the U.S. workplace at somewhere between 40% and 60%.

From the above facts, there can be no question, that women are the primary victims of sexual harassment in the workplace. What is interesting, however, is that sexual harassment cases among men have been rapidly increasing in prevalence in the United States and in other countries.

Authors Billie Dziech and Linda Weiner in their “The Lecherous Professor: Sexual Harassment on Campus” have divided most harassers into two broad categories, public and private. (University of Illinois Press, 1990). Accordingly, “public harassers” are out in the open with their inappropriate conduct. They may tell sexist jokes at work. Or, they may openly view pornography or make obscene gestures to subordinates or colleagues. Private harassers, on the other hand, appear and behave as normal persons would whenever they are in a public setting. Only when the private harasser is alone with his target does the demeanor change. It is at this point that sexually harassing conduct may occur.

The following is a list of additional harasser “types” reported by other commentators. They are not legal in nature, but informative nevertheless:

The Mother/Father Figure (a.k.a. The Counselor-Helper)
This harasser attempts to create a relationship of trust with the victim or target. Once this relationship is developed, it is then utilized to prosecute the harasser’s motive to sexually harass. It has been noted that this is a common method among teachers.

One-of-the-Gang
This is the harasser who harasses because, everyone else in his or her group is. Perhaps the work environment is already highly sexualized. Men and women freely exchange sexual jokes and lewd remarks. Because the workplace culture encourages these remarks, this type of harasser harasses to become part of the workplace team or a group within that team. Thus, the harasser may harass to be accepted by others or to impress those within the group. 

The Serial Harasser
This type of harasser appears to be no threat whatsoever. He or she carefully plans an event in which to abuse a target, without care of the consequences. Often, this type carefully builds up an image so that people would find it hard to believe they would do anyone any harm. They plan their approach carefully, and strike in private so that it is their word against that of the victim.

The Groper
Whenever the opportunity presents itself, this harasser's eyes and hands begin to wander--in the elevator, when working late, at the office or department party. They like to insist on (usually begrudged) kisses or hugs and sometimes involving grabbing the woman's breasts or anus. Called chikan in Japan, the problem is so pervasive there that men are increasingly being banned altogether from stores, restaurants, hotels, spas and even entertainment outlets, and women-only train cars have been created.[14][15]

The Opportunist
The Opportunist uses physical settings and circumstances, or infrequently occurring opportunities, to mask premeditated or intentional sexual behavior towards a target. This will often involve changing the environment in order to minimize inhibitory effects of the workplace or school(e.g private meetings, one-on-one "instruction," field trips, conferences).

The Bully
In this case, sexual harassment is used to punish the victim for some transgression, such as rejection of the harasser's interest or advances, or making the harasser feel insecure about themselves or their abilities. The Bully uses sexual harassment to put the victim in his or her "proper place."

The Confidante
This type of harasser approaches the subordinate, or student, as an equal or a friend, sharing about their own life experiences and difficulties, inventing stories to win admiration and sympathy, and inviting the subordinate to share theirs so as to make them feel valued and trusted. Soon the relationship moves into an intimate domain from which the subordinate finds it difficult to separate.

The Situational Harasser
Harassing behavior begins when the perpetrator endures a traumatic event, or begins to experience very stressful life situations, such as psychological or medical problems, marital problems, or divorce. The harassment will usually stop if the situation changes or the pressures are removed.

The Pest
This is the stereotypical "won't take 'no' for an answer" harasser who persists in hounding a target for attention and dates even after persistent rejections. This behavior is usually misguided, with no malicious intent.

The Great Gallant
This mostly verbal harassment involves excessive compliments and personal comments that focus on appearance and gender, and are out of place or embarrassing to the recipient. Such comments are sometimes accompanied by leering looks. The "wolf whistles" of a street harasser are one example of this.

The Intellectual Seducer
Most often found in educational settings, this harasser will try to use their knowledge and skills as an avenue to gain access to a student, or information about a student, for sexual purposes. They may require students participate in exercises or "studies" that reveal information about their sexual experiences, preferences, and habits. They may use their skills, knowledge, and course content to impress a student as an avenue to harassing or seducing a student.

The Incompetent
These are socially inept individuals who desire the attentions of their target, who does not reciprocate these feelings. They may display a sense of entitlement, believing their target should feel flattered by their attentions. When rejected, this type of harasser may use bullying methods as a form of revenge

Increased Prevalence of Sexual Harassment Amongst Teens and Young People (back to top)

So, here's the situation. You're 16 or 17, maybe a bit older. You want money. You have no skills. You're aren't qualified for anything except the jobs no one wants or jobs employers only want to pay pennies for. Basically, you're on the bottom of the totem pole. In fact, you're not even on the totem pole.

You're in the mud holding it up.

It's kind of like being the new kid in class. How could it get any worse? Well, according to Naomi Earp, chair of the EEOC, there has been a substantial increase in teen complaints in recent years. This could mean that more teens are being discriminated against at work than ever before. Or, it could mean that more teens are reporting the discrimination. In either case, there is cause for concern.

The simple fact is that teens frequently fail to understand their rights at work. And, to make matters worse, teens are often incapable of challenging the misuse of authority in the workplace. It's an all too familiar script. Your boss is at the top of the command structure. He or she tells you where to go, what to do, and how to do it. If you don't like it and resist, you don't have a job. Bosses can take advantage of that. The worst bosses will take advantage in a way that leads to sexual harassment or some other form of discrimination.

Here's a first-hand account by Anna Stevenson, as told to NPR correspondent Joffe-Walt.

ANNA: They definitely took advantage of me as far as hours, minimum wage at the time being $4.25; most of the people are older than you and waiting for you to mess up somehow.

JOFFE-WALT: Then Anna saw this ad for a waterproofing company called Ever Dry. She landed a telemarketing job and made a lot more than she did in fast food. But there were tradeoffs. Comments like this from her manager.

ANNA: So he says, I've been looking down at your shirt and I can see straight down your shirt. And I said, oh, thank you at first. You know, and went to button it. I popped a button. And he said, no, no. I've been able to see down at it all day. I just wasn't going to say anything, but you should be flattered.

JOFFE-WALT: Then Anna started hearing these whispers. Other teenage girls on the night shift were talking about getting love notes from superiors. One co-worker told Anna a salesman had offered her money for sex. Nobody reported these incidents. Then it got worse.

ANNA: It turned into touching, grabbing. I had to show somebody the color of my bra to go on a break.

JOFFE-WALT: Finally, Anna confronted her boss. He told her this is what happens in every workplace.

ANNA: Now, I didn't necessarily know if that was true or not. You know, I'm not an idiot, but at the same time this is also a guy that's the age of my father telling me this is what you have to do at your age to be respected in the workplace.

JOFFE-WALT: Eventually one of Anna's co-workers did file a complaint with the EEOC. The agency investigated Ever Dry and her claims of harassment from Anna and 12 of her co-workers. They brought a lawsuit. And last year a jury found Ever Dry liable. Ever Dry declined to comment for the story. Anna won a $79,000 settlement.

ANNA: And when I looked back, I think, boy, I got pulled in by the same type of stuff that like my mother warned me about when I was five or six years old.

JOFFE-WALT: Anna's now 27. She says she's had a hard time in her last few jobs, except, curiously, for one: bartending. Anna says drunken men in a bar are nothing compared to what she experienced as a teenager in the workplace.

What to Do if You're Sexually Harassed (back to top)

First, give your employer a chance to clean up the workplace, to do away with the harassment. You need to let somebody know that you don't appreciate it, that it's offensive to you, and that you want to see it stop. If there is a human resources department at your workplace, take advantage of it. It is usually a good idea to report your concerns to your immediate supervisor as well. Note that you are not required to confront your harasser directly in order to bring a lawsuit, especially in cases where you feel this might be dangerous or could generate further harassment.

In many cases, your employer will conduct an investigation into the alleged conduct. Because each workplace is different, you may or may not be permitted to view the results of that investigation. Nevertheless, you have a right to feel safe and to work in a harassment-free environment. Thus, however your employer responds to the allegations, you should feel assured that the harassment will not likely to continue.

Sometimes, sexual harassment continues to be a workplace problem, even despite the best efforts of the harassed employee to end it. In some circumstances, there is simply no one to turn to in the workplace because it’s the management itself that’s creating the hostile work environment. If this is your situation, or if your efforts to improve a hostile working environment have failed, then you should seriously consider contacting the EEOC or a private attorney. Likewise, if you’re unsure whether your case merits legal action, you should consult with the EEOC or a private attorney immediately. The deadlines for bringing a claim with the EEOC are very short, as short as 180 days from the time the employee learns of the discrimination in some states (300 days in Indiana). Thus, to preserve your right to legal recovery, it is necessary to act fast.

Sexual Harassment & Employment Law Articles