Sexual harassment often has adverse effects on the victim

Sexual Harassment

I

INTRODUCTION

Sexual Harassment, a form of unlawful sex discrimination. Under federal law in the United States, sexual harassment is unwanted verbal or physical behavior of a sexual nature that occurs in the workplace or in an educational setting under certain conditions. Such behavior is illegal if it creates an environment that is hostile or intimidating, if it interferes with a person’s work or school performance, or if acceptance of the harasser’s behavior is made a condition of employment or academic achievement. A number of other countries—including Japan, Canada, Australia, and several European nations—also have laws that prohibit sexual harassment.

Perceptions differ about what behaviors constitute sexual harassment. However, typical examples of sexual harassment include sexually oriented gestures, jokes, or remarks that are unwelcome; repeated and unwanted sexual advances; touching or other unwelcome bodily contact; and physical intimidation. Sexual harassment can occur when one person has power over another and uses it to coerce the person to accept unwanted sexual attention. If a supervisor forces an employee to have sex by threatening to fire the employee, that is sexual harassment. It can also occur among peers—for example, if coworkers repeatedly tell sexual jokes, post pornographic photos, or make unwelcome sexual innuendos to another coworker. Both men and women can be harassers or victims of sexual harassment. However, research indicates that women are more likely to be victims.

The Congress of the United States first prohibited discrimination based on an individual’s sex when it passed the Civil Rights Act of 1964. However, it was not until the mid-1970s that U.S. courts began to interpret sexual harassment as a form of illegal sex discrimination. Since that time complaints of sexual harassment have become much more common. In several high-profile cases, prominent public officials have been accused of sexual harassment. These cases have increased public awareness of the issue and sparked debate concerning what types of behavior should be considered inappropriate or unlawful.

II

PREVALENCE

Many different studies have attempted to investigate the frequency and prevalence of sexual harassment. Surveys provide widely divergent statistics, indicating that anywhere from 30 to 70 percent of women have experienced some form of sexual harassment at some point in their lives. This wide range may be due in part to the fact that perceptions of what constitutes sexual harassment differ among individuals and among men and women. That is, what some people might consider acceptable behavior, others might think of as sexual harassment.

Another way of gauging the prevalence of sexual harassment is to examine formal complaints to government agencies. From 1990 to 1996 the number of complaints of sexual harassment in the workplace filed with the U.S. Equal Employment Opportunity Commission (EEOC) more than doubled—from about 6000 to about 15,000. The number of men filing sexual harassment claims with the EEOC increased from 8 percent of all claims in 1990 to 10 percent of the total in 1996. Complaints of sexual harassment occurring at schools and colleges have also become more numerous.

Research indicates that sexual harassment is widespread among children and teenagers. One survey of more than 1500 students in nearly 80 junior high and high schools found that 85 percent of girls and 76 percent of boys had experienced some form of sexual harassment at school. The researchers in this study defined sexual harassment as unwanted and unwelcome sexual behavior that interferes with a student’s life. In most categories, girls experienced higher rates of sexual harassment than did boys. Seventy-six percent of girls and 56 percent of boys reported being the target of sexual comments, jokes, gestures, or looks. This was the most common form of sexual harassment in the schools surveyed. Sixty-five percent of girls and 42 percent of boys reported that they had been touched, grabbed, or pinched in a sexual manner. Forty-two percent of girls and 34 percent of boys reported that they had been the subject of sexual rumors. However, more boys than girls (34 percent versus 31 percent) reported that others had shown, given, or left them sexual pictures, photographs, or messages.

Surveys about sexual harassment have a number of research limitations. Victims may be more likely than nonvictims to respond to a survey about sexual harassment. Alternatively, some victims may fail to report harassment because they are ashamed. Therefore, self-report surveys of victims or offenders may result in either overreporting or underreporting of harassment. Bearing in mind the limitations of the research, most experts agree that sexual harassment is widespread.

III

EFFECTS

Sexual harassment often has adverse effects on the victim’s performance at work or school. Both the quantity and the quality of work may suffer, as well as the employee’s or student’s morale, attendance, and ability to work with others. Sexual harassment can cause employers losses in productivity and can lead to greater employee turnover and use of sick leave. The harassment can also harm the victim’s psychological and physical well-being. One study found 96 percent of sexual harassment victims suffer from emotional distress, and 35 percent experience physical, stress-related problems. Typical symptoms include anger, fear, anxiety, lowered self-esteem, depression, guilt, humiliation, embarrassment, nausea, fatigue, headaches, and weight gain or loss.

Sexual harassment can also have indirect effects on society. Many feminist scholars consider sexual harassment to be a form of oppression that men use to maintain male-dominated power structures. These scholars note that sexual harassment in school limits girls’ participation and impairs their academic achievement. Similarly, women in fields of work that men have traditionally occupied—such as the military, law enforcement, and fire fighting—experience higher rates of sexual harassment. Some researchers assert that regardless of whether harassment is an intentional attempt to oppress girls and women, it contributes to lower achievement by women in society.

IV

LAWS AGAINST SEXUAL HARASSMENT

In the United States, two major federal laws prohibit sexual harassment in employment and educational settings: Title VII of the Civil Rights Act of 1964 and Title IX of the Education Act of 1972. These laws authorize federal agencies to investigate complaints of sexual harassment. They also permit victims to file lawsuits against employers or schools seeking to end the harassment and to obtain monetary compensation for the harm resulting from it. Many states have also adopted laws prohibiting sexual harassment.

A

In the Workplace

Title VII prohibits sex discrimination by an employer with respect to compensation, terms, conditions, or privileges of employment. The EEOC, which enforces Title VII, has issued guidelines that help define what constitutes unlawful sexual harassment. According to these guidelines, unwelcome sexual advances, requests for sexual favors, and verbal or physical sexual conduct constitute unlawful sexual harassment under any of three conditions: (1) submission to the conduct is either implicitly or explicitly made a term or condition of employment; (2) submission to or rejection of such conduct is used as a basis for employment decisions; or (3) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. The key element that makes the sexual behavior unlawful in each case is that it is unwanted by the recipient. For example, sexual jokes and flirting may be acceptable in the workplace under some circumstances; however, if these behaviors are unwelcome, they may constitute sexual harassment.

A person who believes he or she has experienced sexual harassment on the job has a limited period of time in which to file a complaint with the EEOC. After the EEOC investigates the matter, it issues a right to sue letter, regardless of its conclusions about the matter. The victim then has 90 days to file a lawsuit against the employer in federal court. If he or she is successful in the lawsuit, the victim can receive up to $300,000 in compensatory damages for each incident of unlawful harassment, as well as back pay, attorneys’ fees, and possibly additional money damages under state or local law. If the victim was fired or did not receive a promotion as a result of the harassment, the court may order reinstatement or promotion. The court may also order the harasser to discontinue the unlawful conduct.

B

In Schools

Title IX prohibits sex discrimination, including sexual harassment, in all federally funded educational institutions. The federal agency responsible for enforcing Title IX, the Office of Civil Rights of the Department of Education, has issued guidelines that help define the scope of that law with respect to sexual harassment. The guidelines discuss two types of sexual harassment. The first type involves a coercive tradeoff—for example, a threat by a professor to give a student a poor grade unless the student has sex with the professor. This type of harassment is known as quid pro quo, a Latin phrase meaning “this for that.” The second type of sexual harassment discussed by the guidelines involves unwanted sexual behavior that creates a hostile or intimidating environment.

A victim of sexual harassment in school can file a lawsuit against the school in federal court for monetary damages under Title IX. The victim need not complain to the Office of Civil Rights first. Educational institutions in violation of Title IX may also lose federal funding.

V

SUPREME COURT OPINIONS

The Supreme Court of the United States began hearing sexual harassment cases in the mid-1980s. Its first rulings described what behaviors constitute unlawful sexual harassment under the federal laws prohibiting sex discrimination. More recently, the Court has considered who is legally responsible when a victim proves that sexual harassment occurred.

A

Defining Sexual Harassment

In 1986 in the case of Meritor Savings Bank v. Vinson, the Supreme Court first recognized as unlawful both types of sexual harassment defined by the EEOC guidelines—that is, harassment involving a coercive tradeoff and harassment that creates a hostile or intimidating environment. The Court unanimously concluded that both types of sexual harassment were actionable under Title VII—meaning victims of such harassment could sue their employer for monetary damages.

In the Meritor case, a female employee alleged that the bank’s male vice president invited her to dinner and, afterward, suggested going to a motel to have sex. She testified that although she initially refused to go to the motel, she later agreed for fear of losing her job. The employee also alleged that the vice president repeatedly made sexual demands of her during business and nonbusiness hours, and that during the next few years they had sex approximately 40 to 50 times. The trial court had concluded that because the sexual relationship between the employee and her supervisor was voluntary, the sexual conduct was unrelated to the employee’s continued employment, and therefore the employee was not a victim of sexual harassment. The Supreme Court ruled that the employee might be able to show that the supervisor’s actions had illegally affected her employment conditions by creating a hostile and intimidating environment.

Whereas the trial court in the Meritor case focused on whether the employee suffered any tangible economic loss, the Supreme Court relied on the language of the EEOC guidelines regarding a hostile work environment. The Court compared sexual harassment to racial discrimination, stating: “Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.” The Court cautioned that to constitute harassment, the behaviors must be sufficiently severe and pervasive so as to “alter the conditions of [the victim’s] employment and create an abusive working environment.” It indicated that employees may sue for sexual harassment even if they did not resist the harassment or suffered no loss of tangible benefits. According to the Court, to determine whether unlawful sexual harassment has occurred, trial courts should assess whether the victim indicated that the sexual advances were unwelcome, and not whether the victim’s participation was voluntary.

In 1993 the Supreme Court again addressed a case in which an employee claimed that her supervisor had sexually harassed her by creating a hostile working environment. In Harris v. Forklift Systems, a female employee alleged that her male supervisor, in front of fellow employees, insulted her because she was a woman, made unwelcome sexual innuendoes, and asked her and other female employees to remove coins from his front pants pocket. The trial court concluded that although some of the supervisor’s comments offended the employee and would offend a reasonable woman, they were not severe enough to affect the employee’s psychological well-being, to interfere with her work performance, or to create an abusive or intimidating work environment. The trial court therefore dismissed the case.

The Supreme Court reversed the trial court’s decision and held that conduct need not “seriously affect an employee’s psychological well-being or cause the employee to suffer injury” in order to be actionable under Title VII. So long as a reasonable person could perceive the environment to be hostile or abusive, and the victim actually perceives it as such, it need not also be psychologically damaging. The Court acknowledged that the law did not provide a precise test for determining whether behavior constituted sexual harassment. The Court indicated that judges or juries should determine whether an environment is hostile by looking at all of the circumstances, based on a number of factors. These factors include the frequency and severity of the harassing conduct; whether it is physically threatening or humiliating; and whether it interferes with an employee’s work performance. According to the Court, the proper standard for determining sexual harassment is a middle path between conduct that is merely offensive and conduct that causes a tangible psychological injury.

In 1998 the Supreme Court, in Oncale v. Sundowner Offshore Services, ruled that unlawful sexual harassment could occur between members of the same sex. The Court did not examine the specifics of the employee’s complaint on appeal because the trial court had ruled summarily (without any trial to examine the facts) that the employee had no basis for a lawsuit under Title VII. Instead, the Court simply determined that the trial court erred in automatically dismissing the case. The Court’s decision also reiterated the standard expressed in the Harris case, which requires courts to assess alleged harassment from the perspective of a reasonable person considering all the circumstances.

B

Responsibility for Sexual Harassment

The Supreme Court has decided several cases regarding when employers and educational institutions are legally responsible (liable) for sexual harassment by employees. An employer or educational institution that is deemed liable must pay monetary damages to the victim of sexual harassment.

In its 1986 decision in Meritor Savings Bank v. Vinson, the Court refused to issue a definitive rule on employer liability under Title VII. However, the Court noted that the general principles of agency should govern responsibility for sexual harassment. Under these principles, employers can be liable for certain wrongdoings by their supervisory employees (agents) because of the legal relationship between the two parties. For example, employers are liable for harm caused by their supervisory employees if the employee's role as a supervisor helped him or her carry out the harmful actions. Applying these principles, lower courts have generally found employers liable for sexual harassment when managers took tangible, job-related action—such as unwarranted termination or demotion—against employees who refused their sexual advances.

In 1998 the Supreme Court issued a pair of decisions that clarified employer liability when supervisory employees sexually harass subordinates by creating a hostile work environment but do not take specific job-related actions against the victims. In Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court ruled that employers are potentially liable for sexual harassment by supervisory employees even if the victim did not experience 'tangible retaliation' or was not denied tangible job benefits. In the Ellerth case a female salesperson alleged that she had been continually harassed by a male supervisor. Ellerth testified that the supervisor touched her inappropriately and indicated that he could make her life 'very hard or very easy' at the company depending on whether she 'loosened up' sexually. However, she did not suffer any tangible job detriment (other than the hostile working environment) when she did not accept his advances. In Faragher, a female lifeguard claimed that she was subjected to ongoing and pervasive crude remarks and unwanted touching. However, she also testified that her male supervisors made no specific sexual demands.

In deciding that employers may still be liable for such harassment, the Court reasoned that an employee's supervisory status may help him or her to sexually harass a subordinate, even if the supervisor does not use his or her authority to take specific retaliatory actions against a victim. However, the Court also stated that employers may defend against such liability by showing that they 'exercised reasonable care to prevent and correct promptly' any improper behavior. The Court indicated that an employer's failure to adopt an antiharassment policy and effectively communicate it to employees may demonstrate a lack of reasonable care. To avoid liability, employers must also demonstrate that the victim 'unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.' For example, a victim's failure to formally report the harassment to company officials could be considered unreasonable in some cases. However, the Court noted that a victim's failure to report harassment might be reasonable if the employer's policy did not guarantee that the victim could register a complaint without the harassing supervisor's knowledge.

The Supreme Court has not addressed employer liability for sexual harassment among coworkers. Federal guidelines indicate that employers would be responsible for such sexual harassment if the employer knew or should have known of the conduct, unless the employer can show that it took immediate corrective action.

In a third 1998 decision, Gebser v. Lago Vista Independent School District, the Court narrowly defined the liability of school districts for sexual harassment of students by teachers. The Court rejected the plaintiff's argument that the liability of school districts under Title IX should be the same as employer liability under Title VII. In other words, the plaintiff asserted that if the authority of the teacher helped him or her to sexually harass a student, the school district should be liable. Instead, the Court ruled that a student who is sexually harassed by a teacher may only recover damages from a school district if an official with authority over the teacher knew about the misconduct and was “deliberately indifferent' to it.

In 1999 the Court ruled that institutions covered by Title IX may also be financially liable for sexual harassment of students by other students, sometimes referred to as peer harassment. In Davis v. Monroe County Board of Education, the Court ruled that victims of peer harassment are entitled to monetary damages from the school only if a school official was aware of the misconduct and, showing deliberate indifference, failed to take proper remedial action. The Court also indicated that in order to receive damages, the victim must demonstrate that the harassment was “so severe, pervasive, and objectively offensive' that it effectively denied the victim access to educational opportunities or benefits provided by the school.

VI

FREEDOM-OF-SPEECH ISSUES

In an attempt to eliminate sexual harassment and avoid financial liability, many employers have developed company policies expressly prohibiting sexual harassment and providing reporting procedures for victims. Often these policies regulate speech in an attempt to prevent verbal harassment. Many schools have adopted similar policies, and some colleges have enacted so-called hate speech codes, which prohibit the use of certain language, such as racist and sexist comments. These policies and codes may conflict with freedom of speech, a right guaranteed by the First Amendment to the Constitution of the United States.

The U.S. Supreme Court has not yet directly addressed the potential conflict between the First Amendment and policies designed to prevent sexual harassment. However, one ruling by the Supreme Court indicates some restriction of speech to prevent sexual harassment may be permissible. In R.A.V. v. City of St. Paul (1992) the Court invalidated a city ordinance prohibiting hate speech based on race and gender. Although the focus of the R.A.V. case was racially motivated speech and not sexual harassment, the Court suggested in passing that policies designed to prevent sexual harassment could be lawful if the policies are primarily directed at conduct rather than speech.

In Robinson v. Jacksonville Shipyards (1991), a lower federal court examined the potential conflict between constitutionally protected freedom of speech and prohibited sexual harassment. In the Robinson case, female employees alleged that male coworkers created a hostile and intimidating environment by posting in the workplace numerous pictures of nude women and making sexually derogatory comments. The employees accused of harassment countered that they were exercising their right of free speech. Finding in favor of the female employees, the court concluded that the governmental interest in eliminating discrimination outweighed the harassers’ alleged free speech rights. Because each allegation of sexual harassment is assessed based on the specific circumstances of the case, other courts have concluded that no harassment takes place when employees read pornographic magazines or tell jokes involving sexual innuendo.

VII

ATTITUDES TOWARD SEXUAL HARASSMENT

Prior to the mid-1970s courts in the United States responded to allegations of sexual harassment by concluding that it was a “private matter.” This approach paralleled the early judicial response to racial discrimination in society. It was not until women gained legal protection of their civil rights, joined the workforce in greater numbers, and attained positions of authority that attitudes toward sexual harassment shifted. Eventually, the courts began to recognize sexual harassment as unlawful discrimination and to provide legal remedies. Throughout the 1980s increased numbers of employees—the majority of whom were women—filed lawsuits alleging employers should be held responsible for sexual harassment engaged in by their employees.

During the 1990s several high-profile incidents focused public attention on the legal and social issues surrounding sexual harassment. For example, in 1991 U.S. Supreme Court nominee Clarence Thomas was accused of sexual harassment by Anita Hill, then a law school professor. During the confirmation proceedings, Hill alleged that Thomas engaged in sexual misconduct while she had worked for him at two federal agencies in the 1980s. Thomas denied the allegations, and the U.S. Senate ultimately confirmed his nomination by a vote of 52-48. However, the nationally televised hearings brought unprecedented attention to the issue of sexual harassment. In addition, the incident spawned public debate concerning the treatment of those who allege sexual harassment and the safeguards for those accused of committing it.

Also in 1991, several female officers in the United States Navy announced that they had been sexually harassed during the Tailhook Convention, an annual convention of navy aviators. More than 25 women, nearly half of whom were officers, alleged that drunken male pilots grabbed them, bit them, and tried to remove their clothes as the pilots pushed them down a hotel hallway. As a result of these accusations, information surfaced about other sexual misconduct at prior conventions and throughout the Navy. Furthermore, the episode increased public awareness of sexual harassment in all branches of the military. Despite official proclamations of “zero tolerance” for sexual harassment following the Tailhook incident, in 1995 the U.S. Department of Defense released a study indicating that 52 percent of women and 9 percent of men in the military had experienced what they considered to be sexual harassment.

Accusations of sexual harassment occurred at the highest levels of political power in the 1990s. Beginning in 1992 several dozen women accused U.S. Senator Robert Packwood of making unwelcome and aggressive sexual advances. He resigned in 1995 after the Senate Ethics Committee voted to expel him on charges of sexual misconduct. In 1994 Paula Jones, a former employee of the State of Arkansas, filed a civil lawsuit alleging that she was sexually harassed by U.S. President Bill Clinton while he served as governor of Arkansas. In 1998 a judge dismissed the suit after determining that even if Jones’s allegations were proven, she could not demonstrate that she had been harmed by the behavior. Jones appealed the dismissal but later agreed to a financial settlement from Clinton and dropped the case.