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Section 17
Sexual Harassment Part 1

Question 17 | Test | Table of Contents | Printable Page

Another prohibited form of gender discrimination is sexual harass¬ment. In 1986, the Supreme Court ruled that sexual harassment was actionable under Title VII of the Civil Rights Act of 1964 Many thou¬sands of cases are filed yearly with the EEOC and state agencies. In fact, studies indicate that the vast majority of working women (more than 85 percent) believe they have been sexually harassed on the job at one time or another.
In one recent case, the EEOC obtained a $1.85-million settlement in a sexual harassment case on behalf of a group of ten women who had worked for a company as secretaries or executive assistants. The women complained that the company’s chairman sought sexual favors in ex¬change for job benefits and had engaged in a pattern and practice of ha¬rassment against them by forcing them to discuss sex acts, touching them in their private parts, and committing other harmful acts. When they complained about the illegal behavior, they were fired.
Sexual harassment cases are on the rise in a variety of nontraditional areas. For example, the firing of a male employee for rejecting the ad¬vances of his homosexual male supervisor proved costly to one company. Recently, the US. Supreme Court ruled that same-sex sexual harassment is actionable. This clears the way for gay men and women who are sexually harassed by superiors or employees of the same sex to proceed with sexual harassment cases in federal and state courts.

What is Sexual Harassment?:

Unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature all constitute sexual harassment when:

• The person must submit to such activity in order to be hired
• The person’s consent or refusal is used in making an employment decision (e.g., to offer a promotion or to avoid being fired)
• Such conduct unreasonably interferes with the person’s work per¬formance or creates an intimidating, hostile, or offensive working environment (e.g., humiliating comments are repeatedly ad¬dressed to the complainant)

Defining what constitutes sexual harassment depends on the facts of each particular case. In quid pro quo cases (instances when employees of ei¬ther sex are propositioned for sexual favors in order to receive a job or a promotion or not to be fired), the issue may be clear-cut. If an employee is passed over for a promotion or denied benefits in favor of another who submitted to sexual advances, the passed-over person is considered to be a victim of sexual harassment under federal and state guidelines.
If an employee initially participates in social or sexual contact, but then rejects continued unwelcome advances, that sometimes consti¬tutes sexual harassment as well, and the fact that the employee did not regularly communicate her negative reaction may not exculpate the company from liability.
In hostile, intimidating, and unprofessional work environment cases, the issues are not always clear—cut. Typically, to establish a prima fade case, the employee must prove that:

1. She was subjected to unwelcome sexual conduct
2. The unwelcome sexual conduct was based on her gender
3. The unwelcome sexual conduct was sufficiently pervasive or se¬vere to alter the terms and conditions of her employment and create an abusive or hostile working environment
4. The employer knew or should have known of the harassment and failed to take prompt and reasonable remedial action

Courts have ruled that the following constitute sexual harassment with respect to hostile, intimidating work environment cases:

• Extremely vulgar and sexually related epithets, jokes, or crusty language, provided the language is not isolated and is continu¬ously stated to the complainant
• Sexually suggestive comments about an employee’s attire or body
• Sexually degrading words describing an employee
• Repeated touching of the employee’s body, provided the touch¬ing is unsolicited and unwelcome
• Showing lewd photographs or objects of a sexual nature to em¬ployees at the workplace

Case Study- Sandra:
Sandra has a consensual sexual relationship with her boss, the company president. Sandra voluntarily continues the relation¬ship for two years, knowing the president is married. She decides to call off the affair after he refuses to obtain a divorce and marry her.
The boss treats Sandra differently after her decision. He runs after and propositions her in front of coworkers at a company party. He regularly makes demeaning comments about her phys¬ical appearance at the office. Eventually, she is fired.
Sandra files a sexual harassment charge. The company argues that since the couple were lovers, no liability should ensue and that Sandra was fired for poor performance. Most important, since Sandra discussed her problems with a supervisor only once and never followed up her complaint or alerted management to more recent acts immediately after they ensued, the company states she contributed to such treatment.
A judge ruled the company failed to investigate her charges and take immediate action (probably because others were afraid to offend the president). All the company’s defenses were re-jected, and the judge ruled in Sandra’s favor. The company fired the president as a result of his harmful, illegal acts and was re¬quired to pay Sandra a substantial amount of money and reim¬burse her for her lawyer’s fees and costs.

• Offensive or repeated requests for dates even if such requests are made to the complainant after work
• Continued advances of a sexual nature that the employee rejects even after the parties break off a consensual sexual relationship

Laws Surrounding Sexual Harassment:

How the company investigates and acts on complaints is a major factor in determining whether it will end up in court and incur sub¬stantial damages. For example, in one case, after a company investi¬gated a sexual harassment charge and found that it had merit, the employer did nothing further but warn the supervisor only once. When the supervisor continued his unlawful conduct (by showing lewd pictures to the complainant), the female worker quit her job and filed a complaint with the EEOC. She was awarded $48,000 when the court ruled that the company had failed to act on its investigation.
In the June 1998 term the Supreme Court clarified the law on sexual harassment in the workplace, making some lawsuits against em¬ployers easier to win while also possibly limiting the legal exposure of companies that have effective antiharassment policies in place (provided the effect of any harassment was not recognizable or severe). In a series of cases decided together, the Court first ruled that employers are strictly liable for the acts of their supervisors and managers when the harass¬ment results in tangible harmful action, such as discharge, demotion, transfer, or other retaliation against the complainant. This is so regardless of whether the employer knew or should have known that harassment was taking place. Thus, when you can prove that serious harassment from a supervisor took place resulting in damages (such as a lost job opportunity), the employer will probably lose the case.
However, when there has been no detrimental action taken (for example, an employee, although propositioned repeatedly by a supervisor, refuses his advances and gets promoted anyway), an employee is allowed to proceed with a lawsuit and recover modest damages, but the employer may defend itself by proving it has taken reasonable care to prevent and promptly correct any sexually harassing behavior (such as by adopting an effective policy with a complaint procedure) and proving that the em¬ployee failed to take reasonable advantage of such corrective mechanisms by remaining silent instead of coming forward to complain.
As a result of these cases, courts will now carefully look to see if a comprehensive policy against sexual harassment was in place at the time the incidents occurred and whether the employer acted properly and promptly when notified of the complaint. When policies are vague or the complaint is not immediately and adequately investigated, or if the complainant is punished in any way for coming forward, the com¬pany may be found liable if the facts are true. Experts suggest that the practical effect of these rulings will be for employers to take a more ac¬tive role in eliminating workplace harassment, such as by training workers to identify and prevent lewd behavior.

Counsel Comments: EEOC guidelines specify preventive affirmative steps that sometimes shield employers from liability. In determining whether an employer is liable, courts look to see if a comprehensive policy against sexual harassment was in place at the time the incident(s) occurred and whether the employer acted promptly and properly. When policies are vague or the incident is not immediately and ade¬quately investigated, or if the employee is punished for coming for¬ward, the company will probably be found liable if the facts are true.
Sexual harassment cases are dangerous to employers because some courts have ruled that companies are responsible for the acts of their supervisory employees regardless of whether the company knew or should have known of the occurrence. In quid pro quo cases involving supervisors, there is a good chance that an employer will be held strictly responsible for the actions of its supervisors, whether or not it knew the acts were occurring. In hostile-environment cases, compa¬nies are often liable for incidents they should have known about but didn’t, when no effective action is taken to end the harassment, even if the company’s official policies prohibit sexual harassment.
To avoid these and other potential legal hazards pertaining to sex¬ual harassment cases, many employers have begun disseminating pe¬riodic reminders in policy manuals, journals, and letters distributed to employees that the company does not tolerate sexual harassment of any kind on the job, that anyone who experiences or observes such treatment must report this to management or their immediate super¬visor (but not to the one doing the harassing) right away, and that all communications will be held in strict confidence with no direct or indirect reprisals to the informant or complainant.

Tip: Courts consider the nature and frequency of the acts, the conditions under which the conduct occurred, whether the company was promptly notified by the complainant, and what steps, if any, the company took after being notified. To prove a case of sexual harass¬ment, it is crucial to take prompt steps to document your claim. For example, if you are being teased on the job, it is wise to complain to a supervisor or manager in writing immediately after the incident oc¬curs. Judges, arbitrators, and EEOC hearing officers are more willing to award damages for sexual harassment when a formal complaint was made requesting that the offensive conduct stop and the request was ignored.
In one case, a woman was the only female traffic controller sta¬tioned at an air traffic center. While working there she was subjected to substantial sexual slurs, insults, and innuendo by other employees, including supervisory personnel. When the woman alerted her supervisors of this in a letter, several suggested that her problem might be solved if she "submitted to one of the controllers."
The court held that the woman proved that sexually harassing actions took place, that such acts were offensive and severe, and that the employer did little to stop them after receiving a warning through her letter. She was awarded substantial damages as a result. Thus, by sending a letter sim¬ilar to the one (below), you may be able to prove a repetitive pattern of conduct and demonstrate that the offensive acts were not condoned.

QUESTION 17

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