Federal Law > Managing Employees > Sexual Harassment

Sexual Harassment

 

Sexual harassment in employment is recognized as a form of sex discrimination. Sex discrimination is prohibited under Title VII of the Civil Rights Act of 1964. Under Title VII sexual harassment is defined as 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 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

Prior to two U.S. Supreme Court cases decided in June, 1998, and discussed later in this chapter, the courts recognized two forms of sexual harassment claims: the "quid pro quo" claim and the "hostile environment" claim. The 1998 cases made some adjustment to the use of the terms quid pro quo and hostile environment.

Quid pro quo. The quid pro quo claim involves cases where a supervisor is requesting sexual favors for job benefits. In other words, quid pro quo sexual harassment occurs when a supervisor offers certain benefits in exchange for sexual favors from the employee. Elements of a quid pro quo claim include:

1. the employee was a member of a protected class.

2. the employee was subjected to unwelcome conduct.

3. the harassment complained of was of a sexual nature or was directed toward one sex or another.

4. submission to the unwelcome conduct was a condition to receiving job benefits.

5. harassment by employer or agent of employer.

Hostile Environment. The hostile environment claim involves unwelcome behavior of a sexual nature which creates an intimidating, hostile, or offensive work environment or has the effect of unreasonably interfering with an individual's work performance. Elements of a hostile environment claim include:

1. the employee was a member of a protected class,

2. the employee was subject to unwelcome sexual harassment in the workplace,

3. the harassment was based upon sex,

4. the harassment affected a term, condition or privilege of employment, and

5. the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.

The U.S. Supreme Court has addressed the standard for determining whether a work environment is sexually hostile in Harris v. Forklift Systems, Inc.2 The Court adopted a "reasonable person" standard for determining whether a work environment is sexually hostile. This decision overruled several lower court decisions which used a "reasonable woman" or "reasonable victim" standard in hostile environment cases. However, the important point which came out of the Harris case is that the conduct of the alleged harasser need not seriously affect the employee's psychological well-being or lead the employee to suffer injury. As long as the environment is reasonably perceived, and is perceived, to be hostile, there is no need to prove injury.

The U.S. Supreme Court in Meritor Savings Bank v. Vinson,3 found that the fourth element of the hostile environment claim must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Whether the conduct in question violates Title VII is determined from the totality of the circumstances. The plaintiff must prove that the workplace was a hostile environment both by objective and subjective standards. This is where the Harris decision is relevant. The objective standard now appears to be whether a reasonable person would view the work environment as sexually hostile. The subjective standard is satisfied if the plaintiff shows that he/she actually perceived the environment to be hostile. Despite the Harris decision, some courts are still using the reasonable woman or reasonable victim standard. Time will tell what standard will be used in the future.

EEOC on Lesbian, Gay, Bisexual or Transgender Employment Discrimination and Harassment

Although Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity, the EEOC and some courts have said that sex discrimination includes discrimination based on an applicant or employee's gender identity or sexual orientation. For example, the EEOC states that it is illegal for an employer to deny employment opportunities or permit harassment because:

  • A woman does not dress or talk in a feminine manner.
  • A man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women.
  • A female employee dates women instead of men.
  • A male employee plans to marry a man.
  • An employee is planning or has made a gender transition from female to male or male to female.

The EEOC and some courts have found that discrimination against an individual because that person is transgender, is by definition discrimination based on sex, and violates Title VII.

The EEOC has found that discrimination based on sexual orientation also necessarily states a claim of sex discrimination under Title VII.  Examples of sex discrimination involving sexual orientation include:

  • Denying an employee a promotion because he is gay or straight.
  • Discriminating in terms, conditions, or privileges of employment, such as by providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
  • Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.

U.S. Supreme Court Rules on Vicarious Liability of Employers in Two 1998 Sexual Harassment Cases

The U.S. Supreme Court ruled on June 26, 1998, in two cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Employers now have more reason to be diligent in their efforts to prevent sex harassment in the workplace. The Court clarified employers' liability under Title VII for the actions of their supervisors after the U.S. Circuit Courts had reached a variety of conclusions.

Employers Liable for Supervisors' Actions. The Supreme Court held in both cases 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. The liability of the employer is automatic when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. However, when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages.

Affirmative Defense Available to Employers. The affirmative defense available to employers comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive 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.

The Supreme Court also held in both cases that while proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may be addressed when litigating the first element of the defense.

The Court also stated in both cases that while an employee's failure to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use an employer's complaint procedure, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.

Antiharassment Policy With Complaint Procedure, Communication and Training Necessary. As a result of these cases, employers must have a well written antiharassment policy with an appropriate complaint procedure, must communicate the policy and complaint procedures to its employees regularly, and must have a regular training program for supervisors and employees.

Prior to these decisions of the Supreme Court it was always recommended that employers create these types of preventive programs. Now the U.S. Supreme Court has made it necessary to have such programs in place.

The Decision in Faragher v. City of Boca Raton. The Faragher case involved lifeguards employed by the City of Boca Raton where the Eleventh Circuit ruled that an employer is not liable unless it actually knew, or had reason to know of the misconduct.

The U.S. Supreme Court reversed the Eleventh Circuit and found that the degree of hostility in the work environment rose to the actionable level and was attributable to the plaintiff's supervisors. The Supreme Court found that the City had failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors.

Furthermore, the U.S. Supreme Court reversed the Eleventh Circuit and found that the City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, the Court held that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. Unlike the employer of a small workforce, the City of Boca Raton needed to communicate a formal policy against harassment, with a sensible complaint procedure.

Decision in Burlington Industries v. Ellerth. In the Burlington Industries case the plaintiff Ellerth quit her job after 15 months as a salesperson in one of Burlington Industries' divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors. Ellerth refused all of her supervisors advances, but suffered no tangible retaliation, and she never informed anyone about her supervisor's conduct.

Quid Pro Quo and Hostile Work Environment Harassment. The Supreme Court stated that cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The Court stated that the terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.

The Court found that to the extent the terms illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, the conduct must be severe or pervasive. Because Ellerth's claims involved unfulfilled threats, it was categorized as a hostile work environment claim. The Court then went on to discuss vicarious liability of the employer and remanded the case to the District Court.

All employers should have a sexual harassment policy which prohibits sexual harassment in the workplace. In addition, the policy can be broadened to include other types of illegal discriminatory harassment. An employer can help prevent sexual harassment by supplementing the policy with sensitization and training of employees and supervisors to the issue and how to prevent and handle sexual harassment complaints. A sample policy and investigation procedure is at the end of this chapter.

U.S. Supreme Court Rules on Whether Same-Sex Harassment Claims Are Covered by Title VII

The U.S. Supreme Court ruled on the issue of same-sex harassment on March 4, 1998, in the case of Oncale v. Sundowner Offshoreservices, Inc. The U.S. Circuit Courts of Appeal had taken a variety of positions on the issue.

Facts of the case. In 1991 Joseph Oncale was working for Sundowner Offshore Services on a Chevron U.S.A., Inc. oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew. On several occasions, Oncale was allegedly forcibly subjected to sex-related actions including physical assault in a sexual manner and threats of rape. Oncale eventually quit his job.

Oncale filed a complaint against his employer claiming that sexual harassment directed against him by respondent coworkers in their workplace constituted discrimination because of sex prohibited by Title VII of the Civil Rights Act of 1964.

Fifth Circuit Decision. The Fifth U.S. Circuit Court of Appeals affirmed the district court's decision that Mr. Oncale, a male, had no cause of action under Title VII of the Civil Rights Act of 1964 for harassment by male co-workers. The Fifth Circuit had previously come to the same conclusion in another same-sex harassment case.

Split in Circuit Court Decisions. The state and federal courts had, in the words of the U.S. Supreme Court in Oncale, "taken a bewildering variety of stances" on the issue of same-sex harassment. Some, like the Fifth Circuit in this case, held that same-sex sexual harassment claims are never cognizable under Title VII. Other decisions in the Fourth Circuit said that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Still others in the Seventh Circuit suggested that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations.

Supreme Court Decision. The Supreme Court in Oncale saw no justification in the statutory language or in the Supreme Court's precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. The employer argued in Oncale that recognizing liability for same-sex harassment would transform Title VII into a general civility code for the American workplace. In response to that argument, the Supreme Court stated that the risk is no greater for same-sex than for opposite-sex harassment, and that the risk of such a problem is adequately met by careful attention to the requirements of Title VII of the Civil Rights Act of 1964.

Discrimination Because of Sex. The Supreme Court found that Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex. The Court also stated that it had never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.

Sexual Desire Not a Factor. The Court also found that harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.

Social Context a Factor. The Supreme Court went on to say that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field -- even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The Court stated that common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. The Supreme Court reversed the findings of the Fifth Circuit and remanded the case for further proceedings consistent with its opinion.

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08/31/2011 $86,000 Settlement in Sexual Harassment Lawsuit, Training Ordered
08/25/2011 $215,000 Settlement in Sexual Harassment and Retaliation Lawsuit, Training Ordered
08/08/2011 $160,000 Settlement in Sexual Harassment Lawsuit Against Packaging Manufacturer, Training Ordered
08/05/2011 $75,000 Settlement in Lawsuit Against Analytic Stress Relieving Inc to Resolve Sexual Harassment and Retaliation, Training Ordered
08/01/2011 $225,000 Settlement in Sex Discrimination and Harassment Lawsuit Against Plastics Company
07/29/2011 $75,000 Settlement in Sex Based Retaliation Discrimination Lawsuit, Training Ordered
07/22/2011 $900,000 Settlement in Sex Discrimination Lawsuit, Training Ordered
07/20/2011 $230,000 Settlement Against Bell Company for Sexual Harassment and Retaliation, Training Ordered
07/14/2011 $140,000 Settlement in Sexual Harassment Lawsuit Against Terminix and ServiceMaster, Training Ordered
07/05/2011 $50,000 to Settle Sexual Harassment Case Against Dollar General, Training Ordered
06/27/2011 $192,500 Settlement in Sexual Harassment Lawsuit Filed by Male Employee, Training Ordered
06/16/2011 $2 million Settlement in Sexual Harassment and Retaliation Lawsuit Against Sonic Drive-In, Training Ordered
06/15/2011 $290,000 Settlement in Sexual Harassment Lawsuit Against Dunkin' Donuts Franchise, Training Ordered
06/09/2011 $101,000 to be Paid by Veterinary Center for Sexual and Gender-Based Harassment and Retaliation, Training Ordered
06/08/2011 $41,125 Settlement in Sexual Discrimination Lawsuit Against a Phoenix Charter School, Training Ordered
06/08/2011 $260,000 Settlement in Sexual Harassment Lawsuit Against Online College, Training Ordered
05/31/2011 $535,000 Settlement in EEOC Sexual Harassment and Retaliation Suit, Training Ordered
05/13/2011 $300,000 Settlement Against Dave's Supermarket in Cleveland for Sexual Harassment, Training Ordered
05/06/2011 $150,000 Settlement in Sexual Harassment and Retaliation Lawsuit Against Oregon Tree Farm, Training Ordered
05/06/2011 $79,000 Settlement in Sex Harassment and Retaliation Case, Training Ordered
04/08/2011 $1,073,261 Judgment Against Whirlpool in Sex and Race Harassment Suit Affirmed
04/01/2011 $451,000 Jury Verdict Awarded for Male-on-Male Sexual Harassment
04/01/2011 Supreme Court Rules An Oral Complaint About Time-Keeping Practices is Protected Activity and Supports Retaliation Claim
03/30/2011 International Profit Associates to Pay $8 Million for Sexual Harassment of Female Employees
03/28/2011 $85,000 Award in Sexual Harassment and Retaliation Case, Training Ordered
03/21/2011 Verdict Against Autozone Affirmed in Sex Harassment Case
03/07/2011 $1.5 Million Award in Sex Harassment and Retaliation Case
02/28/2011 $110,000 Settlement in Sex Harassment and Retaliation Case Against New Orleans Company
02/08/2011 First Student To Pay $150,000 To Settle Sexual Harassment, Retaliation Suit
02/01/2011 EEOC Reports Job Bias Charges Hit Record High of Nearly 100,000 in Fiscal Year 2010; Also Hits Record High in Monies Recovered from Employers
01/21/2011 Verdict of $1,260,080 in Sex Harassment Suit Against Paul's Big M
01/03/2011 Subway Restaurant Operator to Pay $55,000 to Resolve Sex Harassment Claim
12/23/2010 Pharmacy to Pay $195,000 in Sex Harassment Case
12/14/2010 $65,000 Settlement in Sexual Harassment and Retaliation Lawsuit
12/09/2010 Are You Doing All You Can to Protect Your Employees from Sexual Harassment? $248,750 Settlement in Sex Harassment Case
11/22/2010 Alton Restaurant To Pay $75,000 To Settle Sexual Harassment Suit
11/18/2010 Tuscarora Yarns to Pay $230,000 to Settle EEOC Sexual Harassment and Retaliation Suit
11/11/2010 Hotel to Pay $50,000 to Settle Sex Harassment Case
11/05/2010 Delray Beach Construction Company to Pay $125,000 to Settle Sexual Harassment Suit
11/02/2010 Washington Apple Grower Issued Injunction to Prevent Intimidation
10/22/2010 McDonald's USA To Pay $50,000 To Settle Sex Harassment Suit
10/15/2010 Austin Foam Plastics Pays $600,000 To SettleHarassment Suit
10/14/2010 Planet Ford Owners To Pay $160,000 To Settle Discrimination Suit
10/06/2010 Bardon, Inc. / Aggregate Industries to Pay $325,000 to Settle Sexual Harassment/Retaliation Suit
10/05/2010 Orlando Magazine Distributor to Pay $162,400 to Settle Sexual Harassment Lawsuit
09/27/2010 Cintas Corporation Will Pay $152,500 To Settle Sexual And Racial Harassment Lawsuit
09/06/2010 Order Affirms Jury Award of $105,000 and Requires Sexual Harassment Prevention Program
09/02/2010 ABM Industries Settles Sexual Harassment Suit For $5.8 Million
09/01/2010 Abercrombie & Fitch Sued For Religious Discrimination
08/19/2010 Buffalo, OK Pizzeria Settles Sexual Harassment Suit for $40,000
08/12/2010 Mercury Air Centers To Pay $600,000 For Alleged National Origin, Race And Sex Harassment
08/05/2010 Truck Stop to Pay $70,000 to Settle EEOC Suit Charging Sex Harassment by Customers
07/27/2010 Knouse Foods Agrees to Pay $300,000 To Settle Harassment and Retaliation Lawsuit
07/16/2010 Jerseyville Elks Lodge Settles Sexual Harassment and Retaliation Lawsuit for $107,500
07/14/2010 EEOC Settles Retaliation Lawsuit Against Staffing Firm for $62,500
07/06/2010 O Fallon Billboard Company to Pay $55,000 to Settle Sexual Harassment and Retaliation Lawsuit
06/29/2010 EEOC and CVS Caremark Sign National Mediation Agreement
06/25/2010 Major Washington Apple Grower Sued for Sexual Harassment - EEOC Obtains Restraining Order to Protect Witnesses
06/24/2010 Home Builder Agrees to Pay $378,500 and Hire More African-Americans and Women
06/21/2010 Plastics Molding Companies to Pay $190,000 to Settle Sexual Harassment Lawsuit
06/04/2010 National Denture Provider to Pay $150,000 to Settle Sex and Race Harassment Suit
05/10/2010 EEOC Collects on $471,000 Jury Award after Winning Appeal from Waterproofing Company In Sex Harassment Case
05/03/2010 Lafayette College Agrees To Pay $1 Million To Settle Sexual Harassment Suit
04/26/2010 EEOC Obtains $122,500 from Houston Construction Company for Religious, Race and National Origin Discrimination
04/23/2010 Biloxi Car Dealer to Pay $120,000 to Resolve Sex and Race Harassment Suits
04/21/2010 Athens Sonic Owner to Pay $70,000 to Settle Sexual Harassment Suit
04/12/2010 Sonic Drive-In Settles Sexual Harassment Suit
03/05/2010 EEOC Settles Sexual Harassment & Retaliation Suit Against HD Supply In Wyoming
03/02/2010 Western Slope Sand & Gravel Company Pays Nearly Half Million to Settle Sex Bias and Retaliation Lawsuit
02/25/2010 Court Awards Employer $4.5 Million in Fees Against EEOC in Harassment Suit
02/11/2010 Landwin Management to Pay $500,000 for National Origin Bias and Sexual Harassment
01/28/2010 $428,500 Decree Ends Suit Against Eagle Wings for Sexual Harassment, Retaliation and Disability Bias
01/19/2010 West Texas Cap Maker Settles EEOC Sexual Harassment Suit - Co-Owner Pulled Employee s Pants Down in Front of Co-Workers, Federal Agency Charged
01/07/2010 Ralph Schomp Automotive Agrees To Pay $1.5 Million To Settle EEOC Sex And Age Bias Lawsuit
12/15/2009 Phoenix Car Dealers to Pay $500,000 to Settle Suit For Race and Sex Harassment, Retaliation
11/30/2009 Federal Jury Awards $105,000 in Sexual Harassment Case Against Racine IHOP
11/17/2009 Cheesecake Factory Will Pay $345,000 to Six Male Employees in Same-Sex Harassment Suit
11/16/2009 Regal Entertainment Group to Pay $175,000 for Alleged Sex Harassment of Man by Female Co-Worker
11/11/2009 Ruby Tuesday Will Pay $255,000 to Settle EEOC Sexual Harassment Lawsuit Involving Teens
11/05/2009 Tim Dahle Nissan to Pay $455,000 for Alleged Sexual Harassment and Retaliation
10/14/2009 Prison Pays $1.3 Million to Settle Sex Harassment Claims
09/02/2009 $350,000 Sex Harassment Settlement by Taco Bell
08/26/2009 Lowe's Settles Discrimination and Harassment Suit for $1.7 Million, Includes Required Training of Employees
08/25/2009 Wilcox Farms Settles EEOC Sexual Harassment and Retaliation Suit for $260,000 and Agreed to Train Employees
08/24/2009 PetSmart Will Pay $125,000 to Settle EEOC Sex Harassment and Retaliation Suit
08/05/2009 $710,000 Settlement of Sexual Harassment Suit with Hometown Buffet Includes Training
08/03/2009 Luby's to Pay $135,000 for Alleged Sexual Harassment
07/31/2009 $1.7 Million Bias Settlement in Saipan
06/25/2009 Chateau Del Mar/Hickory Hills Country Club to Pay up to $690,000 to Settle EEOC Sex and Race Discrimination and Retaliation Lawsuits
06/23/2009 Simula to Pay $110,000 to Settle EEOC Gender, Equal Pay and Retaliation Case
06/17/2009 Ryan's Family Steakhouse Pays $500,000 in Race Bias and Sex Discrimination and Retaliation Case
06/16/2009 Dillard's to Pay $110,000 in Same-Sex Harassment Case
06/15/2009 Jury Verdict Against Autozone in Sexual Harassment Case
06/12/2009 $1.45 Million Settlement in Sex Bias Case
05/29/2009 $240,000 Settlement by Duane Reade Drug Store Chain in Sexual Harassment Case
04/29/2009 $267,000 Judgment Against Glass Company in Phoenix in Sexual Harassment Case
04/06/2009 Why must employers train their employees in Sexual Harassment Prevention?
03/31/2009 Star Tribune Company to Pay Over $300,000 for Alleged Sexual Harassment
11/23/2008 SAMPLE DISCRIMINATORY HARASSMENT POLICY
11/19/2008 Sexual Harassment Policy Sample
11/19/2008 How to Conduct a Sexual Harassment Investigation Form Sample
11/15/2008 Sources Federal Law-Managing Employees-Sexual Harassment
 

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