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Prevalence | Effects | Laws | Supreme Court | Freedom
of Speech | Attitudes
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.
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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 non victims 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 over reporting
or underreporting of harassment. Bearing in mind
the limitations of the research, most experts
agree that sexual harassment is widespread.
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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.
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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.
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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
non business 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 anti harassment 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.
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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.
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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.
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Sexual Harassment Lawyers