SEXUAL HARASSMENT

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

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 individuals, 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. (29 C.F.R. § 1604.11 [1980])

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.

further readings

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.

cross-references

Assault; Civil Rights Acts; Sex Offenses.

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.

further readings

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.

further readings

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.

cross-references

Employment Law; Women's Rights.

Sexual Harassment

Sexual harassment is a term used to describe actions that make use of sexual comments or acts in order to intimidate those with whom one works. Sexual harassment is illegal. Sexual harassment is a form of sex discrimination, it is a violation of Title VII of the Civil Rights Act of 1964. Title VII applies to all employers with 15 or more employees. Many actions can be legally shown to be either sexual harassment or to contribute to a hostile or offensive work environment. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as follows: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact 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 by an individual is used as the basis for employment decisions affecting such individuals. 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." But legal experts warn managers and business owners that definitions of sexual harassment extend beyond these boundaries. Although most people think that sexual harassment involves conduct of a sexual nature, based on a study of case law, this is not true. Sexual harassment includes acts that are not overtly sexual but rather are directed at individuals based on their gender. Therefore, profanity or rude behavior that is gender-specific may create a work environment that legally supports claims of sexual harassment.

Some observers believe that small businesses are particularly susceptible to sexual harassment problems. This is because small businesses often have an informal office atmosphere that may seem to allow sexual banter and innuendo. Small businesses are also less likely to have an official sexual harassment policy and training program than are larger firms. Savvy small business owners adopt proactive stances to make certain that their employees know that inappropriate behavior—whether it takes the form of displaying sexually explicit photographs, using offensive language, making suggestive or otherwise inappropriate comments, badgering an employee for dates or other interactions outside the workplace, or suggesting that one gender is inferior to another—will not be tolerated in their company. Indeed, firms that do not do so leave themselves open to financial loss via lawsuits as well as other problems like low morale, employee turnover, and absenteeism. These negative side effects can ultimately impact on financial performance. As EEOC guidelines state, "with respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action."

HARASSMENT AND EMPLOYEE RIGHTS

Over the past several years, sexual harassment has become a subject of considerable discussion. Previous generations of business owners and managers rarely had to address the issue. Business historians and social observers point to several possible factors for this. Some note that women used to comprise a much smaller component of the workforce, and that various societal pressures may have made them less likely to come forward with complaints. Others point out that many of the legal protections that are now in place against harassment have only developed over the last 25 to 35 years. Still other observers contend that the rise in sexual harassment claims simply reflects a general decline in civility in American society. Whatever the reasons, sexual harassment complaints have risen throughout the 1990s and remained fairly steady throughout the first five years of the 2000s. The Equal Employment Opportunity Commission is the governing body that is authorized to administer laws prohibiting sexual harassment. Charges of harassment are filed with the EEOC. The EEOC reported that it received 12,679 charges of sexual harassment in fiscal year 2005, of which 14.3 percent were filed by men. The EEOC resolved 12,859 sexual harassment charges in FY 2005 (some charges take longer than a year to resolve and thus the number of charges filed in a single year may be lower than the number of resolutions) and recovered $47.9 million in monetary benefits for charging parties and other aggrieved individuals. This figures does not including monetary benefits obtained through litigation. To these totals, it should be understood that many charges of sexual harassment are resolved quietly, some at substantial cost, before they ever reach the point at which the charge is officially made with the EEOC. Clearly, the potential for losses, both financial and in terms of reputation, as a result of sexual harassment are great and it is a subject that should be dealt with in a very visible and up-front manner within companies of all sizes.

But small business owners and corporate executives alike need to make sure that in their zeal to protect the legitimate rights of employees not to be harassed in the workplace, they do not trample on the rights of those accused of misbehavior. Just because sexual harassment is a significant social and business problem does not mean it has in fact occurred in a particular instance. Indeed, an employee who is punished or dismissed on the basis of a frivolous sexual harassment claim has the same recourse to the law as the victim of sexual harassment who is left unprotected by indifferent managers/owners. Business owners and managers thus need to consider the rights of all parties involved when investigating sexual harassment complaints.

DEVELOPING AND MAINTAINING SEXUAL HARASSMENT POLICIES

A well-drafted, carefully thought-out policy statement on sexual harassment is an important human resource policy for all companies. It's valuable in at least three major ways:

1. As an employee relations tool
2. As basic education for both managers and employees on the subject of sexual harassment
3. As a way of minimizing legal liability to the organization in hostile-environment sexual harassment cases.

Such a policy statement is evidence of a company's good-faith effort to provide a work environment that is free of harassment. When coupled with a proper investigation that successfully ends illegal or inappropriate conduct, it can also provide a major offensive weapon in employer efforts to demonstrate that all reasonable steps were taken and that they were effective in the case of a sexual harassment charge.

Indeed, business consultants universally counsel both small businesses and multinational corporations to establish formal written policies that make it explicitly clear that no forms of sexual harassment will be tolerated. Some companies prefer to disseminate this information as part of their larger general policy statements because of their sensitivity to giving extra attention to a sometimes awkward subject. But others believe that doing so can have the effect of burying the company's sexual harassment policies under the weight of all its other statements. These observers claim that dissemination of a separate policy statement not only better informs employees of the policy itself, but also underlines the company's serious approach to the subject.

Whether a business chooses to distribute its policies on sexual harassment via general information sources (employee handbook) or separate statements, its policies should list all the various forms that sexual harassment can take (sexually loaded "compliments," sexual advances, denigration of a person's gender, etc.) and explain how the company proceeds when confronted with a sexual harassment complaint. The policy statement should also discuss possible disciplinary consequences for workers who are found guilty of engaging in harassment.

Other steps that businesses can take to establish an harassment-free workplace include: establishing internal procedures that address complaints promptly and thoroughly; establishing training programs that educate workers—and especially managers, supervisors, and other people wielding power—about components of sexual harassment and their responsibilities when exposed to such behavior; establishing alternative routes for workers to lodge complaints (in instances where his or her supervisor is the alleged harasser, for instance).

BUILDING A COMPREHENSIVE POLICY

Legal experts warn businesses that they need to make certain that their policies reflect a true understanding of the legal responsibilities of the employer, and a full recognition of the multitude of forms that sexual harassment can take. They point out that some companies have put together policies that, while sensible and effective in some or even most areas, are flawed in other areas, either because their policies did not adequately cover all the ways in which sexual harassment can occur, or because their understanding of sexual harassment was incomplete from the outset. For example, many people have long operated under the misconception that for sexual harassment to occur, the harasser must have a bad intent. The reality, however, is that what may be viewed as perfectly harmless by some people, may be viewed as offensive by others. Courts have dealt with this difference by developing a new standard for analyzing claims of sexual harassment. The old standard was the traditional gender-neutral reasonable person standard, which is thought to be biased toward the male viewpoint. Sexual harassment claims are now analyzed in many jurisdictions from the perspective of a reasonable person of the same sex so as to eliminate the potential for differences in perspective that are based on gender.

Another important factor that is not always sufficiently appreciated by employers is that they can be held liable for harassing conduct by a third party such as a customer or vendor. Cases of this type are rare. Nonetheless, business owners should be aware of their responsibility to address complaints of this type. Just as an employer is responsible to provide employees with a safe work environment, it is responsible to confront customers, clients or other third parties if they harass employees in any way.

Sexual harassment complaints often arise after the failure of a romantic liaison between employees. As a result, many companies attempt to limit such romantic involvement between employees by establishing anti-nepotism and anti-dating policies. Assessments of the dangers of office romance vary dramatically. Some observers view it as a wholly undesirable condition that should be avoided by business owners and managers if at all possible, while others view it as a potential positive development, provided that the relationship lies within certain parameters. But what happens when a philanderer dates and discards casually within a company, leaving angry, litigation-prone employees in his/her wake? Reasons for dating policies to address supervisors, subordinates, and clients, not to mention patients and vendors, are understandable.

The risks that a deteriorating romance poses for a company that employs both parties are undeniable. Perhaps, however, the benefits of happily partnered employees is another possible outcome to an office romance. Famous cases abound: Microsoft's founder Bill Gates and opera impresario Luciano Pavarotti both married employees of their organizations. Obviously, businesses create dating policies to try and manage the negative aspects of office romances, and those that crash and burn. But, since perfectly happy relationships may result from office romances, policies that are clear and specific about exactly what they prohibit are best. The subject is complex, the potential threats serious, and the need for clarity is essential.

INVESTIGATING SEXUAL HARASSMENT COMPLAINTS

Companies must investigate every sexual harassment complaint seriously and thoroughly, and take action accordingly. A key foundation of this process is to make certain that the person who will investigate the complaint has credibility with the workforce. Ideally, the individual will be knowledgeable about the legal dimensions of sexual harassment, experienced in handling employee issues, familiar with the organization's policies, and socially and organizationally distant from both the alleged victim and the alleged harasser (the investigator should not be friends with the alleged victim, nor directly report to the alleged harasser, or vice versa). With smaller companies, however, it can be more difficult to adhere to such guidelines. If a small business owner has only four employees, and two of them become embroiled in a harassment case, finding an investigator with the above qualities is next to impossible. The owner may be tempted to look into the complaint him or herself in such instances, but business advisors often counsel against this. Instead, they recommend that the owner turn to an outside counsel or external consultant to pursue the complaint.

Whether the person doing the investigating is a third party, an employee, or the owner of the business, he or she should have a focused, carefully thought-out investigation plan designed to settle the issue in as timely a fashion as possible. This typically includes a review of relevant organizational records, including complainant's personnel file, alleged harasser's personnel file, performance reviews, and promotional and salary records. Such reviews can turn up everything from prior disciplinary warnings aimed at the accused to possibly relevant indications that the involved parties had previously competed against one another for promotions or other job opportunities. Such data may well be completely irrelevant to the legitimacy of the complaint, but it is the investigator's duty to check into all possible aspects of the complaint.

Every claim should be treated seriously, no matter how unusual or seemingly frivolous it might first appear, until an informed decision can be made. Conversely, an investigator should also suspend judgment on complaints that seem obviously legitimate until a thorough investigation has been completed. This may seem obvious advice but it is as difficult to adhere to as it is obvious.

The first step in an investigation usually involves an in-depth interview of the complainant. Areas that should be pursued during this interview include the cultural background of the complainant (if dramatically different from that of the accused), a detailed reconstruction of the incident(s) that prompted the complaint, the context and circumstances in which it occurred, the involved parties' prior relationship (if any), the nature of the allegations against each individual in instances where incidents involved the participation of more than one person (common in hostile workplace complaints), and the complainant's expectations regarding how the alleged offender should be disciplined.

The investigation then turns to getting the accused's account of events. This step has different nuances, depending on whether the alleged harasser is a supervisor, a coworker, or a third party such as a customer, but basically this part of the investigation aims to secure the accused's perspective. In some instances, the accused may appear angry or shocked when confronted with a sexual harassment charge, so the investigator needs to allow time for the return of some measure of emotional equilibrium. When the initial reaction has subsided the investigator should ask the worker to relate what he or she believed happened during the incidents cited. Allow the accused to relate his or her understanding of the situation completely once, then return to it for specific, step-by-step review. As with the complainant, make sure the discussion is specific and detailed enough to provide the necessary information for later decision making. Note dates, times, places, circumstances, dress, words exchanged, as well as the specifics of the alleged acts. Again, issues such as prevailing work environment, prior relationships, etc. should be discussed.

Once the investigator has finished gathering information from the principal parties, he or she should then turn to possible witnesses. These could range from coworkers who were present when the alleged incident took place to those who have relevant information on either or both of the parties involved. The investigator should not be concerned with unsubstantiated rumors at this juncture; rather, he or she should concentrate on gathering factual data. This can be a very important part of the investigation, for accusations that turn into basic "he said, she said" disputes can be profoundly difficult for employers to resolve. Immediate action may be almost impossible when an employer is faced with unsubstantiated accusation on one side and a categorical denial on the other. But experts point out that workplace behavior often can be corroborated by other staffers. Employers need to interview these witnesses carefully, being careful not to fuel rumors, and/or be seen to have taken sides. The objective of these interviews is to gather factual data, nothing more. It does offer the opportunity, however, to show that the company is handling the investigation seriously, professionally, and carefully. Securing written statements is helpful.

Once the investigation into the sexual harassment complaint has been completed, corrective action (if any) needs to be implemented. When corrective action is warranted, it can range from counseling to transfer to dismissal. The key factors that usually determine the severity of the corrective action are: 1) the nature of the offense, 2) the desires of the complainant, and 3) the impact that the incident had on the workplace as a whole.

HARASSMENT OF THE SELF-EMPLOYED

Self-employed individuals who work as independent contractors enjoy fewer legal protections from sexual harassment at the hands of clients. Experts recommend that self-employed people confronted with such unpleasantness react strongly and decisively. They should make it immediately clear that the harassment (which in these situations typically takes the form of unwanted sexual advances) is unwelcome, and that they would prefer to keep their association with their client a professional one. If this line of defense does not work, the self-employed worker may wish to consult an attorney about his or her state's tort law, which regulates conduct between people and provides monetary damages. In addition, national women's organizations can often provide guidance and legal assistance in these matters.

see also Gender Discrimination; Office Romance; Nepotism

BIBLIOGRAPHY

Buhler, Patricia M. "The Manager's Role in Preventing Sexual Harassment." Supervision. April 1999.

"The Downside of Office Romance." OfficeSolutions. March-April 2006.

Lynn, Jacquelyn. "Lawfully Wedded Employees." Entrepreneur. April 2000.

Moses, Jeffrey. "Office Romance in the New Millennium." National Federation of Independent Business. Available from http://www.nfib.com/object/IO_22940.html. 21 June 2005.

Penttila, Chris. "In the Hot Seat: One person's promotion is another's harassment claim." Entrepreneur. January 2006.

Pfeiffer, Sacha. "Grey Areas Complicate Sexual Harassment Cases." Boston Globe. 25 May 2006.

Petrocelli, William, and Barbara Kate Repa. Sexual Harassment on the Job: What It Is and How to Stop It. Fourth Edition. Nolo Press, 1998.

Risser, Rita. "Sexual Harassment Training: Truth and Consequences." Training and Development. August 1999.

U.S. Equal Employment Opportunity Commission. "Sexual Harassment." Available from http://www.eeoc.gov/types/sexual_harassment.html. Retrieved on 7 June 2006.

Weiss, Donald H. Fair, Square, and Legal. AMACOM, 1 April 2004.

                              Hillstrom, Northern Lights

                               updated by Magee, ECDI

SEXUAL HARASSMENT

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly (1) affects an individual's employment, (2) unreasonably interferes with an individual's work performance, or (3) creates an intimidating, hostile, or offensive work environment. Sexual harassment charges are among the most frequently litigated workplace claims in the United States.

Although stories of women and men suffering in the workplace by refusing to submit to some sort of sexual activity have appeared in recorded history for centuries, the term sexual harassment is relatively new. The term appeared within the feminist movement in the 1960s and entered common usage in 1978 when the federal Equal Employment Opportunity Commission issued guidelines covering such discrimination. Illegal discrimination, typically based on factors such as race and gender, emerged as a key political and social issue during the latter part of the twentieth century; thus, more attention became focused on sexual harassment in the workplace, media, legal profession, academia, and the public.

The legal foundation for the prohibition on sexual harassment can be found in a law chiefly designed to deal with employment discrimination—Title VII of the Civil

Rights Act of 1964. The act barred discrimination based on a person's "race, color, religion, sex, or national origin." Making hiring or firing decisions based upon these factors became illegal. This law, however, did not specifically address sexual harassment on the job, leaving the issue in a legal gray area.

This changed when the U.S. Supreme Court, in a unanimous landmark decision in Meritor Savings Bank v. Vinson (1986), effectively confirmed the illegality of sexual harassment. The decision's impact was threefold: (1) The ruling confirmed that Title VII outlawed sexual harassment, an issue that had been debated previously. (2) Quid pro quo harassment was defined; that is, harassment implying a trade involving sex, such as a supervisor offering a subordinate a promotion in exchange for sexual favors or denying a job benefit for refusal of the supervisor's advances. (3) The concept of "hostile environment" abuse was established.

A hostile environment occurs when an employee is placed in an uncomfortable or threatening environment because of unwelcome sexual behavior in the workplace. Unwelcome sexual behavior may include telling jokes or stories of a sexual nature, unwelcome touching such as patting or hugging, displaying suggestive posters or calendars, sending letters or electronic mail (e-mail) with text or images of a suggestive or sexually explicit nature, and making suggestive facial expressions. The ruling also cautioned that employers have a responsibility for guarding against harassment, a theme echoed in subsequent decisions. Following Meritor, employers throughout the nation began reviewing their personnel policies and practices in the light of these new definitions of sexual harassment.

KEY EVENTS

During the 1990s, two specific events brought the topic of sexual harassment into the national spotlight. The U.S. Navy's Tailhook scandal, in 1991, captured the nation's attention with reports that female naval officers had been assaulted in a hallway "gauntlet" by their fellow officers during the annual convention of naval aviators held in Las Vegas, Nevada.

Also in 1991, the confirmation of Supreme Court nominee Clarence Thomas became the center of a controversial firestorm related to a sexual harassment charge. Anita Hill, a university professor, alleged that Thomas had sexually harassed her from 1981 to 1983 while she worked for him at the Equal Employment Opportunity Commission. Public outcry effectively stopped the confirmation proceedings until the accusations could be examined. Ultimately, Thomas was confirmed for the Supreme Court; the controversy, however, had a lasting effect on the nation's understanding of sexual harassment.

SUBSEQUENT LEGISLATION AND COURT DECISIONS

The Civil Rights Act of 1991, considered a landmark development in the sexual harassment arena, allowed plaintiffs to recover compensatory and punitive damages with a cap of $300,000 on large employers (500+ employees) and $50,000 for smaller ones. Supreme Court decisions on sexual harassment focused more and more on the application of common sense to the particular situation; that is, looking at the situation as a "reasonable" person would. In Harris v. Forklift Systems, Inc. (1993), the Court held that if a workplace is permeated with behavior that is severe or pervasive enough to create a discriminatorily hostile or abusive working environment, Title VII is violated regardless of whether the plaintiff suffered psychological harm. Conversely, the decision also held that the mere utterance of an offensive statement would not normally constitute a violation of the law.

Several Supreme Court decisions issued in 1998 are considered among the most significant in defining sexual harassment law: In Burlington Industries, Inc. v. Ellerth, the complainant showed that, although she was subjected to offensive, vulgar behavior, she had not suffered in any manner relating to her employment situation. In fact, she had been promoted at the company prior to her resignation. The Court ruled that harassment is defined by the behavior of the harasser, not by what subsequently happens to the worker.

Another key portion of this decision and that of an additional case, Faragher v. Boca Raton, addressed employer liability with regard to hostile environment harassment and the employee's responsibility to report the offense to someone with decision-making authority. Faragher involved a female lifeguard who claimed she had endured repeated sexual harassment from her male supervisors, yet she had not formally complained because of her fear of retaliation. Evidence showed that although Faragher's employer, the city of Boca Raton, Florida, had a sexual harassment policy, the policy was unknown to both the complainant and her supervisors. The Court indicated that an employer could defend itself successfully if proof was provided that the employer had a known, effective policy against harassment and that the employee failed to take advantage of the policy. Even more importantly, the Court, in defining the elements of this "affirmative defense," outlined to employers how to prevent a hostile work environment from ever arising.

Another 1998 ruling, Oncale v. Sundowner Offshore Services, Inc., defined sexual harassment as "gender neutral." With this decision, the law was expanded to include homosexual situations as well as harassment between two people of the same gender even when neither is homosexual. The Court unanimously declared that sexual harassment is actionable (victims can sue and liability can be found) even when the people involved are of the same gender.

In Davis v. Monroe County Board of Education (1999), the Supreme Court addressed student-on-student sexual harassment in academic institutions receiving federal funds. The ruling indicated that behavior could be actionable under discrimination law if the behavior was so severe, pervasive, and objectively offensive that victims were denied equal access to education as guaranteed by Title IX. Key to the liability issue was whether those in authority were deliberately indifferent to the acts of harassment and whether the harasser was under the school's disciplinary authority.

In Pennsylvania State Police v. Suders (2004), the Court ruled that an employee facing a situation in which a "reasonable person" would have felt compelled to resign could bring suit regardless of whether that employee had filed a report with the employer before resigning. The ruling also indicated, however, that an accused employer could use the person's failure to file a report, along with evidence of formal policies to prevent harassment, in its defense. If the employer could prove that the employee had not attempted to prevent the harassment, and that safeguards for prevention were in place, the employer would not be liable.

E-MAIL AS EVIDENCE OF SEXUAL HARASSMENT

The majority of workplaces use technology, specifically e-mail, to conduct some portion of business activity. While technology has enabled employees to work faster and more efficiently, e-mail has brought a new risk level to organizations. Many sexual harassment suits are now based primarily on evidence of allegedly inappropriate e-mail messaging and other Internet uses. In a 2001 survey of major companies in the United States, 10 percent reported having responded to a subpoena for employee e-mail. One-quarter of the firms surveyed indicated that they monitor their employees' e-mail via keyword or phrase searches. The monitoring typically focuses on sexual-related or offensive language.

In the area of e-harassment, trends that have emerged in various rulings include the following: (1) courts have been generally less sympathetic in supervisor to employee (as opposed to employee to employee) e-harassment; (2) courts have differentiated between isolated versus continuous incidents; and (3) some employers have successfully established a defense when reasonable care had been exercised to prevent and correct inappropriate use of technology to harass.

PREVENTION AS SOLUTION

Since prevention continues to be the best approach to the sexual harassment problem, the courts consider the actions employers take prior to claims being filed. For employers who wish to make their workplaces free of sexual harassment, various legal and human resources experts recommend the following strategies:

1. Have a written state-of-the-art policy on sexual harassment that explains, in easy-to-understand terms, what behavior is prohibited. Include specific direction related to appropriate e-mail and Internet use. Inform all employees that all messages sent, received, or stored in the e-mail system are business property. Also explain that the employer is entitled to review, monitor, and disclose the stored information. Prior to issuance of the policy, obtain a legal review of the proposed policy. Once the policy is approved, make sure the policy is posted and disseminated to all supervisors and employees, preferably on an annual basis.
2. Commit to the policy at the highest levels. Affirm that employees perceive this issue as important to the company's top managers and to all levels of supervision.
3. Develop an internal complaint process that ensures confidentially and that has multiple access points, not just to the employee's supervisor. Identify management-level personnel of both sexes that are available to those who wish to complain. In some instances, employers have not been found liable if a complaint process was in place and employees failed to use the policy.
4. Investigate complaints promptly and thoroughly, maintaining confidentiality as much as possible. Assure swift action to investigate; courts have found companies liable for sexual harassment in part because they took too long to conduct the investigation. Maintain a firm nonretaliation policy for those complaining or providing information in an investigation.
5. Conduct high-quality training, including refresher training, on antidiscrimination and antisexual harassment policies and practices for three groups: employees, managers, and supervisors. The training must define responsibilities for members of each group and cover the company's sexual harassment policy and complaint procedures. Keep records of such training as tangible evidence of the company's good faith efforts to eliminate sexual harassment.
6. Conduct physical assessments of work areas such as factory floors, warehouses, and remote offices. Potential problems such as inappropriate posters, cartoon clippings, or improper Internet use may be identified through the physical assessments.
7. Take deliberate, decisive action when the sexual harassment policy is violated and make sure that a solid legal basis for the proposed actions exists.

see also Civil Rights Act of 1964 ; Diversity in the Workplace

bibliography

Applen, Heather, and Kleiner, Brian H. (2001). An overview of U.S. Supreme Court decisions in sexual harassment. Managerial Law, 43, 17–24.

Gutek, Barbara A. (2000). Workplace sexual harassment law: Principles, landmark developments, and framework for effective risk management. Personnel Psychology, 53, 745–749.

Hawkins, Dana (2001, August 13). Lawsuits spur rise in employee monitoring. U.S. News and World Report, 131, 53.

Keyton, Joann, Ferguson, Pat, and Rhodes, Steven C. (2001). Cultural indicators of sexual harassment. The Southern Communication Journal, 67, 33–50.

Kukec, Anna M. (n.d.). Sexual harassment and bar association policy: Tightening the gaps is key for management. Retrieved November 30, 2005, from the American Bar Association, Division for Bar Services Web site: http://www.abanet.org/barserv/22–3sexhar.html

Male–on–male sex complaints escalating. (2005, March 1). USA Today, p. 8.

Petrocelli, William, and Repa, Barbara K. (1999). Sexual harassment on the job (4th ed.). Berkeley, CA: Nolo Press.

Stier, William F., Jr. (2005). An overview of sexual harassment. Strategies, 18, 13–16.

Towns, Douglas M., and Johnson, Mark S. (2003). Sexual harassment in the 21st Century—E-harassment in the workplace. Employee Relations Law Journal, 29, 7.

U.S. Equal Employment Opportunity Commission. (1999). EEOC Notice Number 915.002. Retrieved November 30, 2005, from http://www.eeoc.gov/policy/docs/harris.html

U.S. Equal Employment Opportunity Commission. (2002). Facts about Sexual Harassment. Retrieved November 30, 2005, from http://www.eeoc.gov/facts/fs-sex.html

Warfel, William (2005). SEXED: Insulating yourself from sexual harassment litigation. Risk Management, 52, 14–19.

Wyatt, Nancy (2000). Background on sexual harassment. Retrieved November 30, 2005, from http://www.de2.psu.edu/harassment/generalinfo/background.html

Rita Shaw Rone

Clarice P. Brantley

SEXUAL HARASSMENT

SEXUAL HARASSMENT is generally understood to be the attempt to influence, dominate, or injure an individual or a class of individuals through sexually inflected or sexually charged behaviors or environmental conditions. Currently, sexual harassment charges have achieved legal standing in the context of work, housing, and educational settings. Alleged harassers often proclaim their innocence by asserting that their intentions are amiable, innocuous, collegial, flattering, or humorous and have been misconstrued by accusers (victims) and observers. Over the last thirty years, the definition of sexual harassment and its standing in law and in educational and workplace regulation have become flash points for individuals and organizations contending over the impact of feminist ideologies on their own philosophies, rights, and behaviors.

Although "sexual harassment" is a recently formulated concept, using sex to establish and maintain power and status has a long history. Harassment of domestic and industrial female employees by male supervisors has plentiful, though sometimes veiled, documentation through workingwomen's narratives and court records. White men's power to rape, impregnate, and otherwise sexually control black women was a pillar of American slavery. The sexual exploitation, domination, and interpretation of African Americans by whites continued beyond slavery. A notable variant of these patterns was the frequent lynchings in the post–Civil War South; mobs often justified their extralegal actions by alleging that a black man had raped or sexually offended a white woman.

Sexual harassment emerged as a classification of certain patterns of behavior, and of pervasive environmental conditions, in the late 1960s and 1970s, with the women's rights movement and the extension of federal civil rights legislation to include sex as a protected class. Legal statistics and anecdotal evidence confirm what most theory addresses, from varying perspectives: harassers are usually men, while victims or targets are usually women. This pattern reflects prevalent social power relations. But as a way of establishing or affirming dominance over another person through intimidation and embarrassment, sexual harassment has been practiced by anybody on anybody.

Title VII of the Civil Rights Act of 1964 laid the basis for legal claims of sexual harassment by prohibiting employment discrimination on the basis of sex. After earlier lawsuits failed to establish sexual harassment as a variety of sex discrimination, several court decisions in the mid-1970s established a legal interpretation of quid pro quo ("this for that," or trading "favors") sexual harassment. In Williams v. Saxbe (1976), a Washington, D.C., court used Title VII to recognize quid pro quo sexual harassment as sex discrimination, on the grounds that sexual advances by a male supervisor to a female employee would constitute artificial barriers to employment placed before one gender and not the other. In Alexander v. Yale University (1977), a Connecticut court recognized quid pro quo sexual harassment as sex discrimination in education. Brownv. City of Gutherie (1980) and Bundy v. Jackson (1981) recognized another form of sexual harassment, the "hostile work environment." The Eleventh Circuit Court's decision in Henson v. City of Dundee (1982) elaborated this trend by delineating the conditions a plaintiff must establish to prove a hostile work environment, and the Supreme Court in Meritor Savings Bank v. Mechelle Vinson (1986) adopted these standards and affirmed that to gain a favorable decision the plaintiff need not prove that she lost economic benefits associated with the harassment.

The Meritor decision was a landmark in several ways. First, plaintiff Mechelle Vinson's case was argued by Patricia J. Barry, joined by Catharine A. MacKinnon, the author of Sexual Harassment of Working Women (1979), in which MacKinnon argued that the "hostile work environment" was often in effect a prelude to "quid pro quo" harassment. In this scenario, women who tired of "hostile work environment" sexual advances resisted or protested, which led to "quid pro quo" threats to their jobs or work conditions. Secondly, the Rehnquist Court unanimously upheld the favorable appeals court decision. Rehnquist's opinion cited previous interpretations of Title VII and the EEOC (Equal Employment Opportunity Commission) in regard to eliminating workplace differentials between men and women. The Court also found that whether the victim acquiesced in sexual intercourse was irrelevant to the district court's finding against her claim of "hostile environment," since that claim turned on whether the sexual advances were in fact "unwelcome."

The early 1990s brought a number of public, contentious, and soon infamous accusations of sexual harassment, largely among federal employees. In 1991, the courts developed new definitions of the content and possible victims of sexual harassment. In Robinson v. Jacksonville Shipyards, the Sixth Circuit Court ruled that pictures displayed in the workplace need not be "pornography" to create a hostile or offensive work environment; a pose calling attention to private parts of the body was sufficient. Ellison v. Brady (1991) adopted the "reasonable woman" standard in recognition that women's and men's perspectives might differ on what constituted pervasive harassment. And in Jenson v. Eveleth Taconite, the Eighth Circuit Court decided positively in a class action sexual harassment suit brought by women miners, although meager damages were awarded, and the National Organization for Women filed an amicus brief during the appeal, arguing that the judge showed bias against women and pushing for higher punitive damages. The parties eventually reached a settlement.

In June 1991, Thurgood Marshall, until that time the first and only black Supreme Court justice, announced his retirement, which initiated a string of events that would profoundly affect dialogue and litigation regarding sexual harassment. President George Bush nominated Clarence Thomas, former head of the EEOC (created in 1964 to administer Title VII of the Civil Rights Act) and a federal judge for two years, to replace Marshall. Thomas's nomination was controversial because of his inexperience on the bench, his reluctance to explain apparent discrepancies in his statements on divisive social issues, and liberals' anger at Bush's disingenuous replacement of a black liberal by a black conservative. An evenly split Senate Judiciary Committee forwarded Thomas's nomination to the Senate floor on 27 September. In early October, as Senate proceedings began, Anita Hill, an African American law professor at the University of Oklahoma, filed a confidential affidavit accusing Thomas of sexual harassment ten years earlier, when he was her supervisor at the Department of Education and then at the EEOC. After the initial revelation, Judiciary Committee hearings were reopened in what Thomas would call, in his closing statement, a "high-tech lynching" of him, and what contemporary and subsequent commentators have analyzed as an extended and humiliating challenge to the possibility that Anita Hill might be telling the truth.

Thomas's confirmation undoubtedly played a role in the 62 percent increase in EEOC sexual harassment complaints between 1991 and 1992, and the significant increase in women running for political office in 1992. Winners included six senators, twenty-nine representatives, and more than a thousand local officials and representatives. Four male U.S. senators (Adams, Packwood, Inouye, and Durenberger) were accused of sexual harassment. In 1993, the U.S. Navy issued a final report of its investigation of the so-called Tailhook scandal, the egregious harassment and abuse of eighty-one women and seven men officers by more than a hundred of their fellow naval aviation officers at the Tailhook Association convention two years earlier. Seven officers were disciplined, Secretary of the Navy Garrett resigned over the episode, and the assistant chief of naval operations retired at reduced rank.

Educational settings from elementary school through graduate programs became another battleground over definitions of sexual harassment. In their book The Lecherous Professor (1984), Billie Wright Dziech and Linda Weiner ventured a portrait of the power imbalances and gender ideologies that created the context for sexual harassment of female students by male professors. In 1993 the American Association of University Women sponsored a survey of more than a thousand high school students that found that 85 percent of girls, and 76 percent of boys, reported being sexually harassed in school. In 1992 the Supreme Court held that students could hold their schools liable for monetary damages for sexual harassment under Title IX of the Education Amendments of 1972 (Franklin v. Gwinnett County Public Schools). In Doe v. Petaluma (1994) a California federal court asserted that the school could be held liable for peer-to-peer sexual harassment if the school had notice of the harassment and failed to act. In the same year, however, the New Hampshire District Court ordered the University of New Hampshire to reinstate a tenured professor fired for sexual harassment under the university's guidelines (J. Donald Silva v. the University of New Hampshire). Public responses to the case, which originated with students offended by a professor's use of sexually explicit imagery to teach rhetoric, typify the impassioned rhetoric sparked by the topic of sexual harassment. Anthony Lewis, the liberal columnist for the New York Times, adjured Americans to "grow up" and stop resorting to the law to protect their tender sensibilities. Other less prominent commentators hailed the decision as a victory for beleaguered free speech against the massed forces of political correctness.

As American society became more egalitarian, and at the same time certain influential interests continued to resist gender-based power analyses, dispassionate studies of the effects of harassment on men and boy victims, as well as women and girl victims, began to emerge; a salient example is Billie Wright Dziech's chapter on "Male Students: The Invisible Casualties" in Sexual Harassment in Higher Education (1998). The Court kept pace with this trend in Oncale v. Sundowner Offshore Services (1998), which upheld a plaintiff's right to seek damages for same-sex sexual harassment, holding that the prohibition of discrimination "because of sex" can apply to men as well as women.

BIBLIOGRAPHY

Crouch, Margaret A. Thinking about Sexual Harassment: A Guide for the Perplexed. New York: Oxford University Press, 2001.

Dziech, Billie Wright, and Michael W. Hawkins. Sexual Harassment in Higher Education: Reflections and New Perspectives. New York: Garland, 1998.

Hartel, Lynda Jones, and Helena M. VonVille. Sexual Harassment: A Selected, Annotated Bibliography. Westport, Conn.: Greenwood Press, 1995.

Wyatt, Nancy. "Information on Sexual Harassment." Available from http://www.de.psu.edu/harassment/.

Mina JuliaCarson

See alsoDiscrimination: Sex ; Meritor Savings Bank v. Mechelle Vinson ; Tailhook Incident ; Women's Rights Movement: The Twentieth Century .

Sexual Harassment. In the early 1990s, sexual harassment in the military made headlines as decades of mistreatment of military women became known. The initial spotlight followed the public revelation of the events of the U.S. Navy's annual Tailhook Convention at the Las Vegas Hilton in September 1991. Hundreds of navy and Marine aviators attended the convention, where male aviators assaulted their female colleagues and both men and women took part in inappropriate activities. Naval leadership did not respond to a formal complaint about the event, which only worsened its reputation when the abuses were exposed in the national media. The ripple effects of Tailhook were felt for years within the navy, until another event overtook the public's attention.

In November 1996, allegations of rape, sexual assault, sexual harassment, and fraternization on the part of drill sergeants at the army's Aberdeen Proving Ground training facility in Maryland rekindled public outrage. Tailhook, Aberdeen, and numerous other incidents brought considerable media attention to gender relations in the military. This, in turn, led to commissioned studies, panels, and congressional hearings on the topics of sexual harassment and, more generally, the role of women in the military.

As revised in 1995, the Department of Defense defines sexual harassment as a form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career; (b) submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person; or (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment.

People commonly use the term sexual harassment to refer to an even wider range of behaviors, including sexual discrimination, sexual assault, and gender harassment. The concept of sexual harassment is particularly problematic because what offends one individual may not faze another. Research has shown that people are more likely to define a behavior as sexual harassment if it comes from someone in a position of power over them, or if it comes from someone of a different race or class background.

In an article entitled “How Women Handle Sexual Harassment: A Literature Review,” published in Sociology and Social Research (1989), James E. Gruber classified victims' individual responses to harassment into four categories: avoidance of the harasser or the place of harassment; defusion of the incident, such as making a joke of the issue or discussing it only with friends; negotiation, which includes telling the harasser that his behavior is offensive and asking him to stop; and confrontation, in which women use more forceful language and may issue an ultimatum or threat.

At the organizational level, military personnel have been reluctant to file formal complaints of sexual harassment for a number of reasons: they do not believe the organization will respond; they believe there will be a “backlash” against them for filing a complaint; they believe the incident was minor and dealt with satisfactorily on the individual level; they are afraid that a minor complaint will be blown up into a major public issue; or there were no witnesses and they do not believe they will win a “he‐said, she‐said” case. In the 1990s, as harassment received more publicity and women's complaints were taken more seriously, many military men became afraid that they might be falsely accused. The degree to which this actually occurs, however, has not yet been measured.

The targets of sexual harassment can suffer a number of negative effects: poor physical and mental health, drug or alcohol abuse, work dissatisfaction, alienation from coworkers, tardiness and absenteeism, decreased work performance and poor evaluations, job loss or career disruption, and the costs of legal fees, health care, and counseling.

In some ways, the military environment fosters sexual harassment. Military culture has traditionally emphasized aggression and the masculine role, and many of the men who join hold traditional beliefs about gender. Moreover, women have always been and are still a small and very visible minority, historically excluded from some of the most powerful and prestigious military roles. At the same time, the military is a large‐scale formal organization with explicit methods for communicating and enforcing its rules and regulations. Its members are trained to be highly disciplined and to uphold a high moral code. Therefore, the military might also be the workplace most able to stamp out sexual harassment, much as it was more successful than the civilian world in integrating racial minorities.

Studies of sexual harassment rates in the civilian workforce typically find that about 50 percent of women have been harassed at work, although some organizations' rates are considerably higher. Rates in the military have been measured at similar levels—noteworthy because soldiers live and work together twenty‐four hours a day, seven days a week, and see each other not only “on the job” but in dining facilities, in the gym, in the barracks, and in the base shops and clubs. Harassment rates tend to be higher in the ground combat services—the Marines and the army—and lowest in the air force, which is more technically oriented, has the highest percentage of women overall, the highest percentage of women officers, and the greatest percentage of positions open to military women.

Sexual Harassment in the Workplace (1996), a synthesis of the literature, reports the estimated cost of sexual harassment to the U.S. Army in 1988 to be $533 million (in 1993 dollars). These lost funds derive from reduced productivity; absenteeism; separation, transfer, and replacement of harassers and/or victims; and other miscellaneous costs. The estimate does not account for the expenses of litigation or medical and counseling services.

Because women are not likely to be banned from serving in the armed forces ever again, and because their numbers are increasing under the public's watchful eye, sexual harassment will have to be dealt with effectively by the military. Eliminating the abusive treatment of any soldier will reduce military costs and assist soldiers in maximizing their ability to fight and win wars.
[See also Gender: Female Identity and the Military; Gender and War.]

Bibliography

Barbara A. Gutek , Sex and the Workplace: The Impact of Sexual Behavior and Harassment on Women, Men, and Organizations, 1985.
Lisa D. Bastian,, Anita R. Lancaster,, and and Heidi E. Reyst , Department of Defense 1995 Sexual Harassment Survey, 1995.
Defense Equal Opportunity Council , Report of the Task Force on Discrimination and Sexual Harassment, Vols. I and II, 1995.
Margaret S. Stockdale, ed., Sexual Harassment in the Workplace, 1996.
Laura L. Miller , Not Just Weapons of the Weak: Gender Harassment as a Form of Protest for Army Men, Social Psychology Quarterly, vol. 60, no. 1 (March 1997), pp. 32–51.
Richard J. Harris and and Juanita M. Firestone , Subtle Sexism in the U.S. Military, in Subtle Sexism, ed. Nijole V. Benokraitis, 1997.
United States Department of the Army , The Secretary of the Army's Senior Review Panel Report on Sexual Harassment, Vols. I and II, 1997.

Laura L. Miller

Sexual Harassment

BIBLIOGRAPHY

Sexual harassment is the creation of an overtly sexualized work or school dynamic that adversely affects the experience of one or more workers or students. The “sexual” in sexual harassment relates to motive rather than content; while sexual harassment may involve sexually explicit language, images, or actions, the key is that the person being harassed is targeted because of his or her gender. Sexual harassment may be perpetrated by an individual or a group; perpetrators and victims may be of opposite genders or the same gender, men or women. In many jurisdictions, sexual harassment is illegal; workers or students who are adversely affected by harassing behavior may seek compensation through the courts.

In the United States, Title VII of the Civil Rights Act of 1964 prohibits gender-based discrimination in the context of employment and imposes civil liability on employers who engage in or tolerate such behavior. The text of Title VII makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” Originally, lawmakers and judges understood the statute to prohibit disparate treatment of men and women with respect to the tangible and economic aspects of employment: hiring, promotion, retention, pay, and economic benefits.

Even under this limited understanding of Title VII, courts recognized that one form of sexual harassment—called “quid pro quo sexual harassment”—was prohibited. This most explicit form of sexual harassment involves a person in a position of authority making express sexual demands on a subordinate with an implied or overt threat of retaliation if the sexual demands are not met. For example, if a supervisor tells a subordinate that he can keep his job only if he is willing to engage in sexual acts with the supervisor, that is quid pro quo sexual harassment.

In 1986, the U.S. Supreme Court recognized a more subtle—and more controversial—form of actionable sexual harassment: “hostile work environment” sexual harassment. A hostile work environment may be created through unwanted sexually suggestive remarks, sexually charged jokes, or sexual touching. The key difference between a claim of quid pro quo sexual harassment and hostile work environment sexual harassment is the injury or harm experienced by the victim; in a hostile work environment claim, the alleged harm is psychological stress rather than an explicit deprivation of job benefits. Sometimes hostile work environment claims involve an allegation of “constructive discharge”: The work environment was so hostile, so unbearable, that the victim felt compelled to quit and was thus constructively discharged from employment.

Champions of equal rights hail laws prohibiting both quid pro quo and hostile work environment sexual harassment as important tools for equalizing the economic opportunities of men and women. One of the more controversial sexual harassment cases in U.S. history, Jensen et al. v. Eveleth Taconite Company, involved women hired to work in a taconite processing facility in Eveleth, Minnesota; the case was significant because it was the first sexual harassment case successfully brought as a class action. In journalistic accounts of the litigation, many of the women noted that the mines offered wages dramatically higher than those offered by any other employers in the area. For many of the women involved in the litigation, they had to work at the mine or collect welfare benefits to feed their children.

Critics of hostile work environment claims charge that the line between a relaxed and collegial work environment and a hostile environment is not clear enough for employers to develop workable human resources policies. The U.S. Supreme Court has attempted to address this issue by insisting that Title VII is not a “general civility code” (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 [1998]); “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated” (Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 [1993]).

Although most sexual harassment law focuses on the work environment, sexual harassment can occur and even be legally actionable in other contexts. Most notably, as mentioned above, sexual harassment may occur in a school environment. In the United States, Title IX of the Education Amendments of 1972 prohibits gender discrimination in education. Courts have construed Title IX to prohibit sexual harassment; students who are sexually harassed by teachers, administrators, or even other students may have a cause of action against the school that tolerated the harassment.

SEE ALSO Discrimination; Inequality, Gender; Law; Patriarchy; Political Correctness; Sexism; Workplace Relations

BIBLIOGRAPHY

Beiner, Teresa M. 2005. Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law. New York: New York University Press.

Bingham, Clara, and Laura Leedy Gansler. 2002. Class Action. New York: Doubleday.

Wendy L. Watson

Sexual Harassment

Beyond Teasing

A study released by the American Association of University Women (AAUW) in 1993 reported that 85 percent of all girls and 76 percent of all boys in grades eight through eleven said that they had been sexually harassed in some manner in school. A survey conducted by Louis Harris & Associates of 1,632 boys and girls in public schools concluded that "sexual harassment in schools is creating a hostile environment that compromises the education of America's children." The survey characterized sexual harassment as "unwanted and unwelcome sexual behavior," ranging from sexual comments, jokes, gestures, or looks to forced physical activity. Critics contended that the report used too broad a definition of sexual harassment.

Statistics

Seventy-six percent of all girls polled and 56 percent of boys said they had been the recipients of unwanted sexual comments or looks. Sixty-five percent of girls and 42 percent of boys said they had been touched, grabbed or pinched in a sexual manner. About 80 percent of such harassment was by other students, while the rest stemmed from teachers and staff, the poll found. Seventy percent of girls who reported being harassed said that they felt "very" or "somewhat upset" when they were subjected to such behavior, compared with 24 percent of boys. About one-third of the girls who reported harassment said that the treatment made them want to avoid going to school or talking in class, compared with a little over 10 percent of the boys.

Stein

As pointed out by Nan D. Stein, in her chapter "It Happens Here, Too: Sexual Harassment and Child Sexual Abuse in Elementary and Secondary Schools" for the 1993 National Study of School Evaluation (NSSE) yearbook, Gender and Education, "With children age twelve and older, sexual harassment is all too often dismissed as "typical adolescent behavior/and misconstrued as a normal rite of passage, as awkward 'getting-to-know-you' behaviors. Instead of being carefully defined and communicated to students, teachers, and administrators, sexual harassment is trivialized, condoned, or described as 'flirting' or 'initiation rites."' She cites research that showed that although student-to-student sexual harassment was more prevalent than teacher-to-student sexual harassment, and that female students were more likely to be victims, students also were victimized as employees-either as part of a school-sponsored co-op program or as part of an afterschool job.

Offenders

In 1996, a six-year-old boy in Lexington, North Carolina, was accused of sexual harassment and suspended for a day for kissing a female classmate on the cheek. District spokeswoman Jane Martin reportedly said, "Unwelcome is unwelcome at any age." In an interview on NBC's Today show she defended the action by saying, "Sexual harassment is an issue in the workplace as well as in our schools, and there's a responsibility to educate our children, regardless of how young they are." However, officials later backed off from the charge of sexual harassment, and released a statement saying that the young man had been suspended for violating a rule forbidding "unwarranted and unwelcome touching of one student by another." The story made international headlines and caused great debate over what was being termed by some as political correctness carried to extremes. The school board voted a few weeks later to revise its sexual harassment policy so that it took into account the student's age and maturity and his or her intent.

Overreaction?

In the meantime, another young man in New York City was likewise accused of sexual harassment. This time, a seven-year-old had been given a five-day suspension (that was later rescinded) for kissing a female classmate and tearing a button from her skirt. The boy claimed he took the button because his favorite story, Corduroy, was about a teddy bear with a missing button. Critics, including the city's mayor, Rudolph W. Giuliani (R), claimed the school had overreacted.

Source:

Facts on File, volumes 53 and 56 (New York: Facts on File, 1993, 1996).

Sexual Harassment The statutory basis for the prohibition against sexual harassment is Title VII, which prohibits employers from hiring, firing, or otherwise discriminating in terms and conditions of employment on the basis of an individual's race, color, religion, sex, or national origin. Sexual harassment claims are divided into two categories: quid pro quo and hostile workplace environment. Quid pro quo harassment occurs when an employer or supervisor takes tangible employment action against an employee because of the employee's unwillingness to provide sexual favors. The more controversial hostile workplace environment claims were initially recognized by the Supreme Court in Meritor Savings Bank, SFB v. Vinson (1986). In that case, the Supreme Court interpreted an Equal Employment Opportunity Commission (EEOC) regulation, 29 CFR 1604.11(a) (1985), which defined sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The court ruled that to be actionable, the harassment must be severe enough to alter the employee's conditions of employment, creating what has become known as a “hostile environment.”

Subsequently, in Teresa Harris v. Forklift Systems, Inc. (1994), the Court clarified the previous ruling by explaining that the existence of a hostile environment can be determined “only by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance” (p. 369).

One issue that initially caused confusion was whether an employer could be held liable for sexual harassment by a supervisor when the employee suffered no tangible economic loss. In companion decisions in Ellerth v. Burlington and Faragher v. City of Boca Raton (1998), the high court ruled that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. However, when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability by showing that (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action.

One final controversial matter the Supreme Court had to resolve was whether one could sexually harass someone of the same sex. Initially, same‐sex harassment was not considered sexual harassment, but, in the case of Joseph Oncale v. Sundowner Offshore Service (1998), the Supreme Court broadened the interpretation of the law and held that nothing in the act bars a cause simply because the plaintiff and defendant are members of the same sex. The critical issue, Justice Antonin Scalia wrote, was “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed” (p. 78).

Nancy K. Kubasek

sexual harassment in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes. Once stereotyped as involving pressures brought by one in authority (e.g., an employer, teacher, or ranking officer) on someone in an inferior position, with the aim of obtaining sexual favors, harassment is now recognized as also involving behavior that creates an environment unfriendly to its targets. Thus, sexually explicit or suggestive behavior by male fellow employees may be designed to make a work situation difficult for a newly hired female; the harassers' motive may be mere hostility to female entry into a male "preserve."

In the United States, courts have since 1977 recognized some such behavior as a form of sex discrimination; not only the superior who seeks sexual access but also the employer who fails to restrain the behavior of other employees may be liable to suit. The 1991 Senate hearings in which Professor Anita Hill testified that Supreme Court nominee Clarence Thomas had made unwelcome advances to her some years earlier when she worked for him, and the "Tailhook" scandal, involving sexual hazing by male officers during a navy gathering in Las Vegas, Nev., in Sept., 1991, brought the issue of sexual harassment to national attention. In 1992 the Supreme Court gave individuals harmed by a school's discrimination (now interpreted as including failure to discipline students who harass other students) the right to sue the school for damages . In a series of 1998 decisions the Supreme Court ruled that employees in the workplace are to be protected from harassment by people of the same sex; that an employee need not suffer a tangible job detriment in order to sue for harassment; and that a company having effective complaint procedures that an employee unreasonably fails to utilize is protected from suit.

Recent debates have centered on, among other things, the apparent wide differences in men's and women's interpretations of sexual talk; on whether schools and colleges can or should impose speech and conduct codes or take other measures to protect students, especially females, from sexual talk or behavior; and on whether pornography is in itself a form of sexual harassment. It is apparent that the interests of protection from sexual harassment and of freedom of speech will continue to clash.

Bibliography: See M. Boland, Sexual Harassment in the Workplace (2007); C. N. Baker, The Women's Movement Against Sexual Harassment (2007).