I. INTRODUCTION
When the U.S. Supreme Court, in 1986, issued its decision allowing a legal cause of action for sexual harassment as a result of the creation of a hostile work environment, there has been uncertainty as to what constitutes sexual harassment, who may litigate, what defenses are available and how employers can avoid or defend against such claims. The purpose of this article is to discuss the law, regulations, guidelines and court decisions describing the parameters of this developing area of employment law.
Over the last few years, sexual harassment claims have made the news in a way that has been described as “conscious raising experiences for the general public.” As a legal cause of action, a great body of law is developing and continually expanding, indicating that this area of the law will continue to command the attention of employers and employees alike. The Civil Rights Act of 1991 now allows claimants to request a jury trial and significant damages for sexual harassment claims. Recent court decisions have developed what is referred to as the “reasonable woman” standard. Employers must be familiar with the law and sensitive to all conduct in the workplace to avoid potentially expensive and time consuming lawsuits, as well as providing an inviting workplace, free from harassment.
II. STATUTORY BASIS
Section 703 of Title VII of the Civil Rights Act of 1964, as amended, states that it is an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1).
III. SEXUAL HARASSMENT – DEFINITION
The federal Equal Employment Opportunity Commission (EEOC) has issued a regulation entitled EEOC Guidelines on Discrimination Because of Sex [29 C.F.R. Part 1604]. Section 1604.11 of this regulation provides the definition of sexual harassment:
A. Harassment on the basis of sex is a violation of Sec. 703 of Title VII. 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 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.
This definition recognizes two general areas of illegal conduct. The first area is referred to as “quid pro quo”, i.e., situations where sexual favors are sought in return for job promotions or job benefits or a situation where a supervisor threatens the loss of a position, promotion or job benefit if sexual favors are not granted. The second type is commonly referred to as the “hostile environment”, i.e., cases where the conduct complained of has the purpose or effect of an unreasonable interference with an employee’s work performance or the creation of an intimidating, hostile or offensive work environment. There are often times when quid pro quo harassment overlaps with or creates a hostile working environment.
IV. EMPLOYER RESPONSIBILITY (VICARIOUS LIABILITY)
The regulation also provides that employers are held responsible for the acts of their agents (supervisors, managers) within the scope of their employment. Employers may be liable for acts of sexual harassment created by non-management employees as well as non-employees (customers, clients, client service providers, independent contractors) if aware of, or should have been aware of, the unlawful conduct and fail subsequently to take prompt and appropriate corrective action. Employers may be liable regardless of whether the conduct was authorized or forbidden or whether the employer knew or should have known of the occurrence.
The EEOC regulation states that it will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis. In reviewing cases involving the actions of non-employees, the EEOC will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employee.
V. GENDER BIAS
Many lose sight of the parameters of the law. Males and females may sue for sexual harassment as long as the person claiming harassment proves that the harassment constitutes gender bias. Non-pervasive instances of favoritism towards a paramour are not discriminatory. When both men and women are disadvantaged for reasons other than their gender, as a result of a consensual romantic relationship, such situations may be perceived as unfair, but are not discriminatory. Note however that favoritism towards individuals who submit to coerced sexual conduct or sexual harassment is considered quid pro quo harassment. In addition, widespread favoritism based upon sex may also constitute a hostile working environment.
VI. “UNWELCOME CONDUCT”
Sexual conduct becomes unlawful only when it is “unwelcome.” A general definition of “unwelcome conduct” applied by the EEOC in its Policy Guidance on Sexual Harassment in Employment (EEOC Policy Guidance) is found in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”
The EEOC Policy Guidance, acknowledges that “the distinction between invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected” sexual advances may well be difficult to discern, quoting Barnes v. Costle, 561 F.2d 983,999 (D.C. Cir. 1977).
Therefore, it is necessary to look at the context of the conduct - voluntariness of the alleged victim’s participation, past conduct of the alleged victim, verbal or nonverbal in nature.
VII. “UNREASONABLY INTERFERING”
In Rabidue v. Osceola Refining Co., 584 F.Supp. 419 (E.D.Mich. 1984), aff’d, 805 F.2d 611 (6th Cir. 1986), cert. Denied, 481 U.S. 1041 (1987), it was the court’s view that the word
“ ‘unreasonably’ opens the door to an important conceptual development of the sex harassment. This word entitles the judiciary to consider the nature of the employment environment in which the given plaintiff suffered the alleged harassment. This in turn authorizes courts to consider factors such as the educational background of the plaintiff’s co-workers and supervisors, the physical make up of the plaintiff’s work area, and the reasonable expectation of the plaintiff with respect to the kind of conduct that constitutes sex harassment.”
The Rabidue court, in essence, adopted the approach that unreasonable conduct is to be viewed in context.
In Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D. Fla- 1991), the courtrejected the contextual standard of review and has adopted the theory that unreasonable conduct is to be viewed on an objective standard.
The “social context” argument cannot be squared with Title VII’s promise to open the workplace to women. When the pre-existing state of the work environment receives weight in evaluating its hostility to women, only those women who are willing to and can accept the level of abuse inherent in a given workplace -- a place that may have historically been all male or historically excluded women intentionally -- will apply to and continue to work there. It is absurd to believe that Title VII opened the doors of such places in form and closed them in substance. A pre-existing atmosphere that deters women from entering or continuing in a profession or job is no less destructive to and offensive to workplace equality than a sign declaring “Men Only.” As the Fifth Circuit observed, “Work environments heavily charged or heavily polluted with racial or sexual abuse are at the core of the hostile environment theory.” Wyerick, 887 F.2d at 1275. To implement fully the promise of Title VII, “the standards for assessing women’s sensitivity to behavior once condoned as acceptable.” Note, The Aftermath of Meritor; A Search for Standards in the Law of Sexual Harassment, 98 Yale L.J. 1717, 1737-38 (1989).
The Rabidue analysis violates the most basic tenet of the hostile work environment cause of action, the necessity of examining the totality of the circumstances. Excluding some forms of offensive conduct as a matter of law is not consistent with the factually oriented approach dictated by Vinson, Henson, and their progeny. The expert permits evaluation of the environment as a whole. The Court cannot ignore the expert testimony, or the Court’s own perception of the work environment evaluated as a whole; it would have to do so in order to adopt the Rabidueconclusion that a sexually charged environment has only a ‘de minimis effect’ on the psychological well-being of a reasonable woman who works in the skilled crafts at JSI.
The dissenting opinion in the Rabidue case advocated the adoption and use of a “reasonable woman” standard, noting that the “reasonable person” perspective “fails to account for the wide divergence between most women’s views of appropriate sexual conduct and those of men.” This theory was adopted in Jacksonville Shipyards and in several other recent cases.
VIII. HOSTILE ENVIRONMENT
A single event generally will not create a hostile environment unless it is severe, e.g., an actual assault; an unwelcome, intentional touching; or a single unwelcome physical advance that results in seriously poisoning the victim’s working environment. In cases involving verbal conduct, the alleged harassment depends on the nature, frequency, context and intended target of the remarks. The EEOC Policy Guidance, in quoting case law, states that the conduct must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”
Several factors affecting this determination include:
The central issue remains whether the conduct “unreasonably interferes with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” See, 29 C.F.R. §1604.11(a)(3). Flirtation, innuendo or even vulgar language that is trivial or merely annoying would generally not be enough to establish a hostile environment. As the EEOC Policy Guidance points out: “Title VII does not serve ‘as a vehicle for vindicating the petty slights suffered by the hypersensitive.” The guidance discusses the use of an objective “reasonable person” in evaluating whether claims of harassment are sufficient enough to create a hostile environment.
NOTE: Often, “hostile environment” allegations are coupled with claims of constructive discharge. If constructive discharge due to a hostile environment is proven, the claim will also become one of quid pro quo harassment. The EEOC and the courts generally will hold an employer liable for constructive discharge when the employer imposes intolerable working conditions in violation of Title VII “when those conditions foreseeably would compel a reasonable employee to quit, whether or not the employer specifically intended to force the victim’s resignation.” EEOC Policy Guidance, Paragraph D. A mitigating factor may hinge on whether the employer had an effective internal grievance procedure.
IX. REMEDIES AVAILABLE AND PREVENTATIVE ACTIONS
There are several legal avenues that may be pursued in a harassment claim. Obviously, claims may be brought before the federal EEOC and federal courts. The Civil Rights Act of 1991 allows both compensatory and punitive damages. Nebraska, like most states, has a Fair Employment Practices Act under which actions may be brought before the Nebraska Equal Opportunity Commission and state court review. In addition, there are several common law tort allegations that may be applicable in particular cases, such as: infliction of emotional distress assault; battery; false imprisonment; defamation; libel; slander; interference with contracts; interference with business relations; negligent hiring; invasion of privacy; intentional misrepresentation; negligent misrepresentation; duress; undue influence; loss of consortium; injury to reputation express; breach of contract; and implied breach of contract. Finally, claims under state Workers’ Compensation laws, RICO Act claims and ADA claims have also used in connection with sexual harassment claims.
The EEOC regulation encourages employers to:
“take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”
29 C.F.R. §1604.11(f). For a preventative program to be effective, the employer should establish and publish a written sexual harassment policy that is distributed, clearly explained, with periodic reminders. The employer should declare its disapproval of sexual harassment and its serious intent to prevent such conduct to all employees. The employer should have a procedure for resolving sexual harassment complaints, designed to encourage victims of harassment to come forward, ensure confidentiality and to provide effective remedies, including protection of victims and witnesses against retaliation. The procedure should provide a means for an alleged victim to lodge a complaint without the involvement of the offending supervisor. Supervisors should be trained to understand the policy, definitions and complaint procedure. All claims should be treated as valid no matter how trivial or frivolous any may seem. The employer should also look at the pervasiveness and severity of the alleged harassment. In completing the procedure, avoid penalizing the victim and make follow-up inquiries to determine if the remedial measures taken were appropriate.
Quoting several cases, the EEOC Policy Guidance remarks:
“Since Title VII ‘affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult’ * * * an employer is liable for failing to remedy known hostile or offensive work environments. * * * When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. * * * The employer should make follow-up inquiries to ensure the harassment has not resumed and the victim has not suffered retaliation. * * * If the Commission finds that the harassment has been eliminated, all victims made whole, and preventive measures instituted, the Commission normally will administratively close the charge because of the employer’s prompt remedial action.”
X. TIPS IN CONDUCTING INVESTIGATIONS
Below are listed several common mistakes that may get you into trouble when making investigations based upon a complaint for harassment.
XI. SEXUAL HARASSMENT REPORTS IN 2007
The EEOC has reported that in 2007, it received 12,510 charges of sexual harassment, of those, 16% were filed by males. The EEOC resolved 11,592 sexual harassment charges in 2007 and recovered almost $50 million in monetary benefits for the victims, not including awards recovered through private litigation in federal or state courts.
NOTE: There are two samples of policies prohibiting sexual harassment that can be found as different articles under the Personnel section entitled:
"Memorandum to Supervisors on Sexual Harassment" and "Policy on Sexual Harassment (SAMPLE)".