| Dictionary: sexual harassment |
The making of unwanted and offensive sexual advances or of sexually offensive remarks or acts, especially by one in a superior or supervisory position or when acquiescence to such behavior is a condition of continued employment, promotion, or satisfactory evaluation.
| Business Dictionary: Sexual Harassment |
Unwelcome and often intimidating verbal or physical sexual advances. Sexual harassment often carries with it threats of employment reprisals if such advances are refused. Sexual harassment has been defined by the federal government and courts as illegal employment discrimination.
| Business Encyclopedia: Sexual Harassment |
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, as amended. It is defined by the Equal Employment Opportunity Commission as unwel-come sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct (1) explicitly or implicitly affects an individual's employment, (2) unreasonably interferes with an individual's work performance, or(3) creates an intimidating, hostile, or offensive work environment. U.S. law recognizes two types of sexual harassment. The first is termed quid pro quo, Latin for "this for that," implying a trade involving sex (e.g., a supervisor offering a subordinate a promotion in exchange for sexual favors or denying a job benefit because of refusal of the supervisor's advances). The second type is "hostile environment" harassment, which is less blatant and harder to define. This occurs when an employee is placed in an uncomfortable or threatening environment due to unwelcome sexual behavior in the workplace. Examples of hostile environment situations include telling jokes or stories of a sexual nature; unwelcome touching, such as patting or hugging; displaying suggestive or sexually explicit photographs, posters, or calendars; or making suggestive facial expressions or gestures.
History
As a practice, sexual harassment is certainly not new; accounts of women and men placing their livelihoods at risk if they did not submit to some sort of sexual activity—from the playful to the criminal—can be found throughout history. However, the term itself is relatively new in American culture, entering the language as recently as 1975. The legal foundation for objecting to sexual harassment was laid in 1964 in Title VII of the Civil Rights Act, which prohibited employment discrimination because of an individual's sex as well as race, color, religion, or national origin. Still, although sex discrimination was illegal, there was no real guidance in existence with regard to sexual harassment. It was not mentioned specifically anywhere in the Civil Rights Act, nor was it found in the fair employment practices statutes enacted in most of the states. When the courts ruled on the issue, they typically saw it as a sort of personal dispute between employee and harasser not covered by law. Largely as a result of the issue's being raised and publicized by women's groups during the early 1970s, the Office of Personnel Management issued guidance in 1980 defining sexual harassment and warning that such conduct was unacceptable in the federal workplace. Still, the new guidelines had no legal enforcement avenues available. Action by the Equal Employment Opportunity Commission in 1980 attempted to remedy this by declaring that it was illegal to sexually harass someone on the job. By this time, sexual harassment had been the subject of several court cases but had not drawn national attention.
Key Events
The Supreme Court decided its first sexual harassment case in 1986 in Meritor Savings Bank v. Vinson with a unanimous landmark ruling that did three important things: confirmed that Title VII outlawed sexual harassment; defined quid pro quo harassment; and, finally, added the concept of hostile environmental abuse. The ruling also cautioned that employers have a responsibility for guarding against harassment. Vinson was significant in that this was the first time the Court recognized a cause of action for sexual harassment based on creation of the "hostile work environment," in contrast to earlier quid pro quo cases in which the demand for sexual favors was at issue. Vinson caused employers nationwide to relook at personnel policies and practices with regard to sexual harassment as newly defined.
Many felt that Vinson did not go far enough with regard to employer liability, while others felt it criminalized what they saw as harmless humor and friendly flirtation. As this debate continued, largely in the workplaces and courtrooms of the nation, two events occurred: one involving theU.S. military and the other the confirmation of a Supreme Court justice. These events brought the topic of sexual harassment into the national spotlight. In 1991, the Navy's Tailhook scandal 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. Lieutenant Paula Coughlin complained officially to her superiors of her fellow officers' behavior, only to see her complaints initially ignored. She then went public with her story, prompting other female naval officers to do the same. The Tailhook scandal resulted in a number of administrative actions against naval officers, early retirements of some of the Navy's highest officials, and the forced resignation of the Secretary of Navy.
Perhaps the most significant event to make sexual harassment the topic of national debate was the revelation in 1992 that Supreme Court nominee Clarence Thomas had, a decade earlier, allegedly sexually harassed a former employee of his at the Equal Employment Opportunity Commission (EEOC). Anita Hill, a professor at the University of Oklahoma's Law School at the time of Thomas's nomination, had been contacted by Senate staffers regarding a rumor regarding such allegations. Hill indicated that Thomas had repeatedly discussed sexual matters with her in a suggestive and humiliating manner while he was her superior at the EEOC. When the majority of the U.S. Senate appeared ready to confirm Thomas without an airing of the charges, American women protested and effectively stopped the proceedings until the accusations could be examined. The ensuing testimony in Senate hearings by both Hill and Thomas started a firestorm of controversy throughout the nation. Many working women began to speak out of their own experiences and, within days of the hearings, the number of sexual harassment complaints filed with government agencies quadrupled. Ultimately, Thomas was confirmed for the Supreme Court; however, the controversy had the lasting effect of bringing the issue of sexual harassment out of the dark into the light of legal and political debate.
Amendments to the Law and Court Decisions
The Civil Rights Act of 1991 expanded the rights of the complainant, allowing individuals who file actions under the law to collect up to $300,000 in compensatory and punitive damages. Also, in the years following the passing of this law, many states tightened sexual harassment laws and added measures to protect victims from reprisal.
In recent years, Supreme Court decisions on sexual harassment have focused more and more on the application of common sense to the particular situation (i.e., looking at the situation as a "reasonable" person would). In 1993, in its decision in Harris v. Forklift Systems, Inc., the Court established the standard and perspective for evaluating whether or not a particular conduct is unlawful harassment. The Court ruled unanimously that while psychological harm may be taken in account in evaluating whether sexual harassment occurred, it is not a requirement in a claim. Conversely, the decision also held that the mere utterance of an offensive statement would not normally constitute a violation of the law.
The following Supreme Court decisions, all issued in 1998, are considered among the most significant in defining sexual harassment law: First, 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 a worker. Another key portion of this decision and that of another 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 had claimed she had endured repeated sexual harassment from her male supervisors yet had not formally complained due to her fear of retaliation. During the course of the litigation, it was shown that although Faragher's employer, the city of Boca Raton, Florida, had a sexual harassment policy, it was unknown to both the complainant and her supervisors. The Court indicated that an employer could defend itself successfully if it could prove that it had a known, effective policy against harassment and that the employee had failed to take advantage of it.
In another ruling, Oncale v. Sundowner Offshore Services, Inc., employer liability for sexual harassment between members of the same sex was clearly defined. The case arose out of a suit filed by an oil platform worker who had been subjected to humiliating, sex-related acts by two supervisors and a fellow crew member. The Court unanimously declared that sexual harassment is actionable (i.e., liability can be found) even when the people involved are of the same sex. A key point articulated in the decision was that what mattered was the conduct at issue rather than the sex of the individuals involved or the presence or absence of sexual desire.
Possible Solutions
Prior to the Farragher and Ellerth decisions, the courts decided liability of employers by focusing their attention chiefly on actions taken after an employee complained of harassment. In more recent decisions, the courts are also taking into consideration the steps that employers have taken before claims are filed, including whether or not they have a good sexual harassment policy in place. Such actions by the courts clearly show that prevention remains the best remedy for sexual harassment. The following strategies are recommended by various legal and human resources experts for employers who wish to make their workplaces sexual harassment-free: (1) Have a written state-of-the-art policy on sexual harassment that explains, in easy-to-understand terms, the types of prohibited behavior. Prior to issuance, get a legal review of the policy. Assure that the policy is posted as well as disseminated to all supervisors and employees, preferably at least on an annual basis. (2) Commit to the policy at the highest levels. Assure that employees see this issue as a matter of importance to the company's top managers and all levels of supervision. (3) Develop an internal complaint process that assures confidentiality and has multiple points of access, not just the employee's supervisor. Assure that there are management-level personnel of both sexes available to those who wish to complain. While the Supreme Court did not mandate that employers provide complaint procedures, it did hold that employers may escape liability if they have a complaint process in place and employees fail to use it. (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. Assure that employees complaining or providing information in an investigation are not retaliated against.(5) Conduct high-quality training, including refresher training, for employees, managers, and supervisors on anti-discrimination and anti-sexual harassment policies and practices. Assure that the training covers responsibilities of members of each of these groups regarding 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. Often potential problems such as inappropriate posters or cartoon clippings can be identified. (7) Take deliberate, decisive action when the sexual harassment policy is violated. Assure that there is a solid legal basis for the actions proposed. The unjustly accused harasser, as well as the accuser, is a potential plaintiff.
Bibliography
Barrier, Michael. (1998). "Sexual Harassment." Nation's Business December:14-19.
Boo, Katherine. "Universal Soldier: What Paula Coughlin Can Teach American Women." Washington Monthly. http://web-cr05.pbs.org/wgbh/pages/frontline/shows/navy/tailhook/debate.html. September 1992.
Cangelosi, Joe, Gatlin-Watts, Rebecca W., and Moore, Herff L. (1998). "Eight Steps to a Sexual Harassment Free Workplace." Training and Development April: 12-13.
Debevoise, Kate S., and Tselikis, Penny. (1998). "Sexual Harassment—Still the Hottest Workplace Issue." Business and Health May: 19-20.
Eskenazi, Martin, and Gallen, David. (1992). Sexual Harassment—Know Your Rights. New York: Carroll & Graf.
Ganzel, Rebecca. (1998). "What Sexual Harassment Training Really Prevents." Training October: 86-94.
Heerman, Max, and Raphan, Melissa. (1997). "Eight Steps to Harassment-Proof Your Office." HRFocus August: 11-12.
Laabs, Jennifer. (1998). "What You're Liable for Now." Workforce October: 34-42.
Lavelle, Marianne. (1998). "The New Rules of Sexual Harassment." U.S. News and World Report July 6, 1998: 30-31.
Petrocelli, William, and Repa, Barbara Kate. (1999). Sexual Harassment on the Job, rev. ed. Berkeley, CA: Nolo Press.
Phelps, Timothy M., and Winternitz, Helen. (1992). Capitol Games. New York: Hyperion.
Segal, Jonathan A. (1998). "Prevent Now or Pay Later." HRMagazine October: 145-149.
Van Hyning, Memory. (1993). Crossed Signals—How to Say No to Sexual Harassment. Los Angeles: Infotrends Press.
Webb, Susan L. (1991). Step Forward: Sexual Harassment in the Workplace: What You Need to Know. New York: Master Media.
[Article by: CLARICE P. BRANTLEY; RITA SHAW RONE]
| Dental Dictionary: sexual harassment |
In 1986, the U.S. Supreme Court adopted the definition of sexual harassment formulated by the Equal Employment Opportunity Commission as follows: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual (both quid pro quo harassment), 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 (condition of work harassment).
| US Military History Companion: 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
| US Supreme Court: 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
| Britannica Concise Encyclopedia: sexual harassment |
For more information on sexual harassment, visit Britannica.com.
| US History Encyclopedia: 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/.
| Columbia Encyclopedia: sexual harassment |
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.
| Law Encyclopedia: 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 say:
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 pun ished 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 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.
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 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 Mechelle 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 forty 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 position, and keep employees from advancing in their career. Title VII's guiding rule of workplace equality requires that employers prevent a hostile work environment.
Many employers, realizing the potential liability arising from hostile work environment complaints, have sought to prevent the occurrence of 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 should also be part of the policy. Employers should recognize that a prompt and thorough investigation of a complaint, followed by appropriate disciplinary action, is the wisest course. These procedures also should 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.
See: employment law; women's rights.
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one day i was at my house. MLIA
Sexual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors.[1] In some contexts or circumstances, sexual harassment may be illegal. It includes a range of behavior from seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault.[2] Sexual harassment is a form of illegal employment discrimination in many countries, and is a form of abuse (sexual and psychological) and bullying. For many businesses, preventing sexual harassment, and defending employees from sexual harassment charges, have become key goals of legal decision-making. In contrast, many scholars complain that sexual harassment in education remains a "forgotten secret," with educators and administrators refusing to admit the problem exists in their schools, or accept their legal and ethical responsibilities to deal with it (Dziech, 1990).
In her book In Our Time: Memoir of a Revolution (1999), journalist Susan Brownmiller quotes the Cornell activists who in 1975 thought they had coined the term sexual harassment: "Eight of us were sitting in an office ... brainstorming about what we were going to write on posters for our speak-out. We were referring to it as 'sexual intimidation,' 'sexual coercion,' 'sexual exploitation on the job.' None of those names seemed quite right. We wanted something that embraced a whole range of subtle and un-subtle persistent behaviors. Somebody came up with 'harassment.' 'Sexual harassment!' Instantly we agreed. That's what it was." (p. 281). These activists went on to form Working Women's Institute which, along with the Alliance Against Sexual Coercion, founded in 1976 by Freada Klein, Lynn Wehrli, and Elizabeth Cohn-Stuntz, were among the pioneer organizations to bring sexual harassment to public attention in the late 1970s.
The term sexual harassment was used in 1973 by Dr Mary Rowe in a report to the then President and Chancellor of MIT about various forms of gender issues. (See Saturn's Rings, 1973). Rowe has stated that she believes she was not the first to use the term, since sexual harassment was being discussed in women's groups in Massachusetts in the early 1970s, but that MIT may have been the first or one of the first large organizations to discuss the topic (in the MIT Academic Council), and to develop relevant policies and procedures. MIT at the time also recognized the injuries caused by racial harassment and the harassment of women of color which may be both racial and sexual. The President of MIT also stated that harassment (and favoritism) are antithetical to the mission of a university as well as intolerable for individuals.
Sexual harassment can occur in a variety of circumstances. Often, but not always, the harasser is in a position of power or authority over the victim (due to differences in age, or social, political, educational or employment relationships). Forms of harassment relationships include:
One of the difficulties in understanding sexual harassment is that it involves a range of behavior, and is often difficult for the recipient to describe to themselves, and to others, exactly what they are experiencing. Moreover, behavior and motives vary between individual harassers.
Dzeich et al. has divided harassers into two broad classes:
Langelan describes three different classes of harassers.
There is usually more than one type of harassing behavior present, so a single harasser will often fit more than one category. These are brief summations of each type.
Sexualized environments are environments where obscenities, sexual joking, sexually explicit graffiti, viewing Internet pornography, sexually degrading posters and objects, etc., are common. None of these behaviors or objects may necessarily be directed at anyone in particular or intended as harassment. However, they can create an offensive environment, and one that is consistent with "hostile environment sexual harassment".
Sexual harassment can also occur in group settings as part of rituals or ceremonies, such as when members engage newcomers in abusive or sexually explicit rites as part of hazing or initiation. While such traditions have historically remained in arenas of male bonding or female bonding, such as team sports, fraternities, and sororities, it is becoming increasingly common for girls/women's groups to engage in similar ceremonies.
Retaliation and backlash against a victim are very common, particularly a complainant. Victims who speak out against sexual harassment are often labeled troublemakers who are on their own power trips, or who are looking for attention. Similar to cases of rape or sexual assault, the victim often becomes the accused, with their appearance, private life, and character likely to fall under intrusive scrutiny and attack.[3] They risk hostility and isolation from colleagues, supervisors, teachers, fellow students, and even friends. They may become the targets of mobbing or relational aggression.[4]
Women are not necessarily sympathetic to female complainants who have been sexually harassed. If the harasser was male, internalized sexism, and/or jealousy over the sexual attention towards the victim, may encourage some women to react with as much hostility towards the complainant as some male colleagues.[5] Fear of being targeted for harassment or retaliation themselves may also cause some women to respond with hostility.[6] For example, when Lois Jenson filed her lawsuit against Eveleth Taconite Co., the women placed a hangman's noose above her workplace, and shunned her both at work and in the community—many of these women later joined her suit.(Bingham et al. 2002) Women may even project hostility onto the victim in order to bond with their male coworkers and build trust.[6]
Retaliation has occurred when a sexual harassment victim suffers a negative action as a result of the harassment. For example, a complainant be given poor evaluations or low grades, have their projects sabotaged, be denied work or academic opportunities, have their work hours cut back, and other actions against them which undermine their productivity, or their ability to advance at work or school. They may be suspended, asked to resign, or be fired from their jobs altogether. Moreover, a professor or employer accused of sexual harassment, or who is the colleague of a perpetrator, can use their power to see that a victim is never hired again, or never accepted to another school. Retaliation can even involve further sexual harassment, and also stalking and cyberstalking of the victim.[5][6]
Of the women who have approached her to share their own experiences of being sexually harassed by their teachers, feminist and writer Naomi Wolf writes,
"I am ashamed of what I tell them: that they should indeed worry about making an accusation because what they fear is likely to come true. Not one of the women I have heard from had an outcome that was not worse for her than silence. One, I recall, was drummed out of the school by peer pressure. Many faced bureaucratic stonewalling. Some women said they lost their academic status as golden girls overnight; grants dried up, letters of recommendation were no longer forthcoming. No one was met with a coherent process that was not weighted against them. Usually, the key decision-makers in the college or university—especially if it was a private university—joined forces to, in effect, collude with the faculty member accused; to protect not him necessarily but the reputation of the university, and to keep information from surfacing in a way that could protect other women. The goal seemed to be not to provide a balanced forum, but damage control."[7]
Another woman who was interviewed by Helen Watson, a sociologist, reported that, "Facing up to the crime and having to deal with it in public is probably worse than suffering in silence. I found it to be a lot worse than the harassment itself." (Watson, 1994)
Effects of sexual harassment can vary depending on the individual, and the severity and duration of the harassment. Often, sexual harassment incidents fall into the category of the "merely annoying." However, many situations can, and do, have life-altering effects particularly when they involve severe/chronic abuses, and/or retaliation against a victim who does not submit to the harassment, or who complains about it openly. Indeed, psychologists and social workers report that severe/chronic sexual harassment can have the same psychological effects as rape or sexual assault. (Koss, 1987) For example, in 1995, Judith Coflin committed suicide after chronic sexual harassment by her bosses and coworkers. (Her family was later awarded 6 million dollars in punitive and compensatory damages.) Backlash and victim-blaming can further aggravate the effects. Moreover, every year, sexual harassment costs hundreds of millions of dollars in lost educational and professional opportunities, mostly for girls and women. (Boland, 2002)
Common professional, academic, financial, and social effects of sexual harassment:
Some of the psychological and health effects that can occur in someone who has been sexually harassed: depression, anxiety and/or panic attacks, sleeplessness and/or nightmares, shame and guilt, difficulty concentrating, headaches, fatigue or loss of motivation, stomach problems, eating disorders (weight loss or gain), alcoholism, feeling betrayed and/or violated, feeling angry or violent towards the perpetrator, feeling powerless or out of control, increased blood pressure, loss of confidence and self esteem, withdrawal and isolation, overall loss of trust in people, traumatic stress, post-traumatic stress disorder (PTSD), complex post-traumatic stress disorder, suicidal thoughts or attempts, suicide.[4][8][9][10][11]
Studies show that organizational climate (an organization’s tolerance, policy, procedure etc.) and workplace environment are essential for understanding the conditions in which sexual harassment is likely to occur, and the way its victims will be affected (yet, research on specific policy and procedure and awareness and prevention strategies is lacking).another element which increases the risk for sexual harassment is the job’s gender context (having few women in the close working environment or practicing in a field which is atypical for women)[15].
According to Prof. Orit Kamir, the most effective way to avoid sexual harassment in the work place, and also influence the public’s state of mind, is for the employer to adopt a clear policy prohibiting sexual harassment and to make it very clear to their employees .Many women prefer to make a complaint and to have the matter resolved within the workplace rather than to “air out the dirty laundry” with a public complaint and be seen as a traitor by colleagues, superiors and employers, adds Kamir[16]. See also: Rowe,Mary "People Who Feel Harassed Need a Complaint System with both Formal and Informal Options," in Negotiation Journal, April, 1990, Vol. 6, No. 2, pp. 161–172., and Rowe,Mary, "Dealing with Harassment: A Systems Approach," in Sexual Harassment: Perspectives, Frontiers, and Response Strategies, Women & Work, Vol. 5, Margaret Stockdale, editor, Sage Publications, 1996, pp. 241–271. Most prefer a pragmatic solution that would stop the harassment and prevent future contact with the harasser rather than turning to the police. More about the difficulty in turning an offence into a legal act can be found in Felstiner & Sarat’s (1981) study[17], which describes three steps a victim (of any dispute) must go through before turning to the justice system: naming – giving the assault a definition, Blaming – understanding who is responsible for the violation of rights and facing them, and finally, claming – turning to the authorities. In sexual offences there is great difficulty for the victims to go through these steps, and the closer the relationship between victim and assailant; the harder it is to take each step.
In the US, the Civil Rights Act of 1964 Title VII prohibits employment discrimination based on race, sex, color, national origin or religion. The prohibition of sex discrimination covers both females and males. This discrimination occurs when the sex of the worker is made as a condition of employment (i.e. all female waitpersons or male carpenters) or where this is a job requirement that does not mention sex but ends up barring many more persons of one sex than the other from the job (such as height and weight limits).
Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used.[18] In 1976, Williams v. Saxbe established sexual harassment as a form of sex discrimination when sexual advances by a male supervisor towards a female employee, if proven, would be deemed an artificial barrier to employment placed before one gender and not another. In 1980 the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by the Civil Rights Act of 1964. In the 1986 case of Meritor Savings Bank v. Vinson, the Supreme Court first recognized "sexual harassment" as a violation of Title VII, established the standards for analyzing whether the conduct was welcome and levels of employer liability, and that speech or conduct in itself can create a "hostile environment." The Civil Rights Act of 1991 added provisions to Title VII protections including expanding the rights of women to sue and collect compensatory and punitive damages for sexual discrimination or harassment, and the case of Ellison v. Brady resulted in rejecting the reasonable person standard in favor of the "reasonable woman standard" which allowed for cases to be analyzed from the perspective of the complainant and not the defendant. Also in 1991, Jenson v. Eveleth Taconite Co. became the first sexual harassment case to be given class action status, paving the way for others. Seven years later, in 1998, this case would establish new precedents for setting limits on the "discovery" process in sexual harassment cases, and allowing psychological injuries from the litigation process to be included in assessing damages awards. In the same year, the courts concluded in Faragher v. City of Boca Raton, Florida, and Burlington v. Ellerth, that employers are liable for harassment by their employees. Moreover, Oncale v. Sundowner Offshore Services set the precedent for same-sex harassment, and sexual harassment without motivation of "sexual desire", stating that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender of either the victim, or the harasser.
In the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White, the standard for retaliation against a sexual harassment complainant was revised to include any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination.
During 2007 alone, the U.S. Equal Employment Opportunity Commission and related state agencies received 12,510 new charges of sexual harassment on the job [19]
Title IX of the Education Amendments of 1972 (United States) states "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
In Franklin v. Gwinnett County Public Schools (1992), the U.S. Supreme Court held that private citizens could collect damage awards when teachers sexually harassed their students. In Bethel School District No. 403 v. Fraser (1986) the courts ruled that schools have the power to discipline students if they use "obscene, profane language or gestures" which could be viewed as substantially interfering with the educational process, and inconsistent with the "fundamental values of public school education." Under regulations issued in 1997 by the U.S. Department of Education, which administers Title IX, school districts should be held responsible for harassment by educators if the harasser "was aided in carrying out the sexual harassment of students by his or her position of authority with the institution."[20] In Davis v. Monroe County Board of Education, and Murrell v. School Dist. No. 1, 1999, schools were assigned liability for peer-to-peer sexual harassment if the plaintiff sufficiently demonstrated that the administration's response shows "deliberate indifference" to "actual knowledge" of discrimination.
In India, the case of Vishaka Vs. State of Rajasthan in 1997 has been credited with establishing sexual harassment as illegal.[21] In Israel, the 1988 Equal Employment Opportunity Law made it a crime for an employer to retaliate against an employee who had rejected sexual advances, but it wasn't until 1998 that the Israeli Sexual Harassment Law made such behavior illegal. (Kamir, 2005)
In May 2002, the European Union Council and Parliament amended a 1976 Council Directive on the equal treatment of men and women in employment to prohibit sexual harassment in the workplace, naming it a form of sex discrimination and violation of dignity. This Directive required all Member States of the European Union to adopt laws on sexual harassment, or amend existing laws to comply with the Directive by October 2005.[22]
In 2005, China added new provisions to the Law on Women's Right Protection to include sexual harassment.[23] In 2006 "The Shanghai Supplement" was drafted to help further define sexual harassment in China.[24]
The United Nations General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women defines sexual harassment of women to include:
"such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment."
While such conduct can be harassment of women by men, many laws around the world which prohibit sexual harassment are more enlightened and recognize that both men and women may be harassers or victims of sexual harassment. It is important to note, most claims of sexual harassment are made by women.
There are many similarities, and also important differences in laws and definitions used around the world. After covering one country in some detail (the United States), approaches in other countries are covered alphabetically.
There are a number of legal options for a complainant in the U.S.: mediation, filing with the EEOC or filing a claim under a state Fair Employment Practices (FEP) statute (both are for workplace sexual harassment), filing a common law tort, etc.[25] Not all sexual harassment will be considered severe enough to form the basis for a legal claim. However, most often there are several types of harassing behaviors present, and there is no minimum level for harassing conduct under the law.(Boland, 2002) Many more experienced sexual harassment than have a solid legal case against the accused. Because of this, and the common preference for settling, few cases ever make it to federal court.[25] The section below describes the legal definitions that have been created for sexual harassment in the workplace. Similar definitions have been created for academic environments in the U.S. Department of Education Sexual Harassment Guidance.
In 1980 the Equal Employment Opportunity Commission produced a set of guidelines for defining and enforcing Title VII (in 1984 it was expanded to include educational institutions). The EEOC defines sexual harassment as:
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:
1. Submission to such conduct was 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 was used as the basis for employment decisions affecting such individual, or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
1. and 2. are called "quid pro quo" (Latin for "this for that" or "something for something"). They are essentially "sexual bribery", or promising of benefits, and "sexual coercion".
Type 3. known as "hostile work environment," is by far the most common form. This form is less clear cut and is more subjective.[5]
Note: a workplace harassment complainant must file with the EEOC and receive a "right to sue" clearance, before they can file a lawsuit against a company in federal court. (Boland, 2002)
Quid pro quo means "this for that". In the workplace, this occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. For example, a supervisor promises an employee a raise if he or she will go out on a date with him or her, or tells an employee he or she will be fired if he or she doesn't sleep with him or her.[26] Quid pro quo harassment also occurs when an employee makes an evaluative decision, or provides or withholds professional opportunities based on another employee's submission to verbal, nonverbal or physical conduct of a sexual nature. Quid pro quo harassment is equally unlawful whether the victim resists and suffers the threatened harm or submits and thus avoids the threatened harm.[27]
This occurs when an employee is subjected to comments of a sexual nature, unwelcome physical contact, or offensive sexual materials as a regular part of the work environment. For the most part, a single isolated incident will not be enough to prove hostile environment harassment unless it involves extremely outrageous and egregious conduct. The courts will try to decide whether the conduct is both "serious" and "frequent." Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment.[28] Probably the most famous hostile environment sexual harassment case to date is Jenson v. Eveleth Taconite Co. which inspired the movie North Country. (See Hostile environment sexual harassment)
The line between "quid pro quo" and "hostile environment" harassment is not always clear and the two forms of harassment often occur together. For example, an employee's job conditions are affected when a sexually hostile work environment results in a constructive discharge. At the same time, a supervisor who makes sexual advances toward a subordinate employee may communicate an implicit threat to retaliate against her if she does not comply.[29]
"Hostile environment" harassment may acquire characteristics of "quid pro quo" harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Under these circumstances it would be appropriate to conclude that both harassment and retaliation in violation of section 704(a) of Title VII have occurred."
Retaliation has occurred when an employee suffers a negative action after he or she has made a report of sexual harassment, file a grievance, assist someone else with a complaint, or participate in discrimination prevention activities. Negative actions can include being fired, demotion, suspension, denial of promotion, poor evaluation, unfavorable job re-assignment—any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination. (See Burlington Northern & Santa Fe Railway Co. v. White) Retaliation is as illegal as the sexual harassment itself, but also as difficult to prove. Also, retaliation is illegal even if the original charge of sexual harassment was not proven.
The Sex Discrimination Act 1984 defines sexual harassment as " ... unwanted conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated."
Undesirable behavior of a sexual nature at the workplace if such conduct is unwelcome, unsuitable or insulting, or if it can be justifiably perceived by the party concerned as a condition for decisions affecting the exercise of rights and obligations ensuring from labor relations.[30]
Sexual harassment is defined as, when any verbal, non-verbal or physical action is used to change a victim's sexual status against the will of the victim and resulting in the victim feeling inferior or hurting the victim's dignity. Man and woman are looked upon as equal, and any action trying to change the balance in status with the differences in sex as a tool, is also sexual harassment. In the workplace, jokes, remarks, etc., are only deemed discriminatory if the employer has stated so in their written policy. Women are viewed as being responsible for confronting harassment themselves, such as by slapping the harasser in the face. Law number 1385 of December 21, 2005 regulates this area.[31]
Article 222-33 of the French Criminal Code describes sexual harassment as, "The fact of harassing anyone using orders, threats or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him..." This means the harasser can only be someone with authority on the harassed (basically, there can't be sexual harassment between coworkers of the same rank). However, moral harassment occurs when an employee is subjected to repeated acts (one is not enough) the aim or effect of which may result in a degradation (deterioration) of his conditions of employment that might undermine his rights and his dignity, affect his physical or mental health or jeopardize his professional future. Sexual as well as the moral harassment is recognized by the law.[32]
Sexual harassment in India (and Pakistan)is termed "Eve teasing" and is described as: unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. The critical factor is the unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator.[21]
The 1998 Israeli Sexual Harassment Law interprets sexual harassment broadly, and prohibits the behavior as a discriminatory practice, a restriction of liberty, an offence to human dignity, a violation of every person's right to elementary respect, and an infringement of the right to privacy. Additionally, the law prohibits intimidation or retaliation that accommodates sexual harassment. Intimidation or retaliation thus related to sexual harassment are defined by the law as "prejudicial treatment". (Kamir, 2005)
Pakistan has adopted a Code of Conduct for Gender Justice in the Workplace that will deal with cases of sexual harassment. The Alliance Against Sexual Harassment (AASH) announced they would be working with the committee to establish guidelines for the proceedings. AASH defines sexual harassment much the same as it is defined in the U.S. and other cultures.[33]
The Anti-Sexual Harassment Act of 1995 was enacted "primarily to protect and respect the dignity of workers, employees, and applicants for employment as well as students in educational institutions or training centers. This law, consisting of ten (10) sections, provides for a clear definition of work, education or training-related sexual harassment and specifies the acts constituting sexual harassment. It likewise provides for the duties and liabilities of the employer in cases of sexual harassment, and sets penalties for violations of its provisions. It is to be noted that a victim of sexual harassment is not barred from filing a separate and independent action for damages and other relief aside from filing the charge for sexual harassment." [34]
There is no special provision in the employment law that provides for moral or sexual harassment; however it is commonly accepted by the jurisprudence, that sexual harassment occurs when the employee is subjected to acts of another person in order to obtain favours of a sexual nature. Moral harassment occurs when en employee is subjected to acts which may result in a deterioration of his conditions of employment or undermine his rights and dignity as well as affect his physical or moral health. These definitions are not legal ones, but definitions accepted by the jurisprudence.[30]
In the Criminal Code, Russian Federation, (CC RF), there exists a law which prohibits utilization of an office position and material dependence for coercion of sexual interactions (Article 118, current CC RF). However, according to the Moscow Center for Gender Studies, in practice, the courts do not examine these issues.[35]
The Discrimination Act of 1975, was modified to establish sexual harassment as a form of discrimination in 1986.[36] It states that harassment occurs where there is unwanted conduct on the ground of a person's sex or unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. If an employer treats someone less favourably because they have rejected, or submitted to, either form of harassment described above, this is also harassment.[37]
Though the phrase "sexual harassment" is generally acknowledged, by everyone, to include clearly damaging and morally deplorable behavior, its boundaries can be broad and controversial. Accordingly, misunderstandings can abound. Moreover, sexual harassment law has been highly criticized by experts, such as Alan Dershowitz and Eugene Volokh, for imposing on the right to free speech.[38] Some feminist groups criticize sexual harassment policy as helping maintain archaic stereotypes of women as "delicate, asexual creatures" who require special protection.[39] Camille Paglia, for example says that young girls can end up acting in such ways as to make sexual harassment easier, such that for example, by acting "nice" they can become a target. Paglia commented in an interview with Playboy, "Realize the degree to which your niceness may invoke people to say lewd and pornographic things to you--sometimes to violate your niceness. The more you blush, the more people want to do it."[40]
Sexual harassment policy and legislation have been criticized as attempts to "regulate romance" which goes against human urges.[41] Other critics assert that sexual harassment is a very serious problem, but current views focus too heavily on sexuality rather than on the type of conduct that undermines the ability of women or men to work together effectively. Viki Shultz, a law professor at Yale University comments, "Many of the most prevalent forms of harassment are designed to maintain work-particularly the more highly rewarded lines of work-as bastions of male competence and authority."[42] Feminist Jane Gallop sees this evolution of the definition of sexual harassment as coming from a "split" between what she calls "power feminists" who are pro-sex (like herself) and what she calls "victim feminists," who are not. She argues that the split has helped lead to a perversion of the definition of sexual harassment, which used to be about sexism but has come to be about anything that's sexual. (Gallop, 1997)
There is also concern over abuses of sexual harassment policy, and employers and administrators using accusations as a way of expelling employees they want to eliminate for other reasons. (Westhues, 1998).
There is also discussion of whether some recent trends towards more revealing clothing and permissive habits have created a more sexualized general environment, in which some forms of communication are unfairly labeled harassment, but are simply a reaction to greater sexualization in everyday environments.[43]
There are many debates about how organizations should deal with sexual harassment. Some observers feel strongly that organizations should be held to a zero tolerance standard of "Must report - must investigate - must punish."
Others write that those who feel harassed should in most circumstances have a choice of options. See "Workplace Justice, Zero Tolerance, and Zero Barriers," 2001, by Mary Rowe and Corinne Bendersky, in Negotiations and Change, From the Workplace to Society, Thomas Kochan and Richard Locke (editors), Cornell University Press, 2002; Mary Rowe in "Dealing with Harassment: A Systems Approach," in Sexual Harassment: Perspectives, Frontiers, and Response Strategies, Women & Work, Vol. 5, Margaret Stockdale, editor, Sage Publications, 1996, pp. 241–271; Mary Rowe, "People Who Feel Harassed Need a Complaint System with both Formal and Informal Options," in Negotiation Journal, April, 1990, Vol. 6, No. 2, pp. 161–172. Sexual harassment, by definition, is unwanted and not to be tolerated but there often are a number of effective ways for offended and injured people to deal with harassment.
See also: SIECUS annotated bibliography of books on sexual harassment and sexual violence
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