Term Paper on "Sexual Harassment After the Advances in Equality"

Term Paper 5 pages (1678 words) Sources: 1+

[EXCERPT] . . . .

Sexual Harassment

After the advances in equality for both women and minorities during the 1960s and 1970s, U.S. law codified employment standards of behavior in Title VII, which states that discrimination based on sex is unlawful. Despite this law, many workplaces remained unfriendly and even hostile to female employees. This report will assess the current laws regarding this specific type of workplace harassment and how it differs from basic workplace bullying or harassment, specifically focusing on the recent Supreme Court case Mack v. Otis Elevator in determining current legal standards regarding sexual harassment. Finally, we will examine how these concepts and laws are being applied by employers in the corporate world today.

It is hard for many young workers in today's employment market to recall a time when hiring discrimination included biases against applicants based on their race or gender, but those days were only a few decades ago. It was only with the adoption of Title VII, a part of the Civil Rights Act of 1964, that it became illegal to "discriminate against any individual...because of such individual's race, color, religion, sex, or national origin" (42 USC 2000, 1964). Despite these legal prohibitions against separating employees on the basis of their gender, sexual harassment continues to exist in the workplace. The difficulty in prohibiting or altering such behavior comes first from the difficulty in defining it.

Black's Law Dictionary defines harassment in general as "a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose" (Garner 2004). This broad definition is so subjective and open to interpretation, one can barely determine if a behavior constitutes harassment or is only an annoyance -- a co-worker who constantly speaks too loudly, or is openly critical of coworkers, for example. Loud voices and other "distressing" habits such as non-constructive criticism cannot immediately constitute harassment. Instead, they fall under the category of "workplace bullying," which, although a significant problem and a relevant area to be addressed in the workplace, will not be discussed in detail here, as our focus is on the more specific topic of sexual harassment. Some legal scholars note that "people hear this phrase 'hostile environment harassment,' and they think it means any kind of annoying behavior -- that you can sue someone because they offend you or get on your nerves. But that is not what the law says. Nor should it." (Fisher 1998).

In interpreting this clause of the Civil Rights Act, the Supreme Court has established that harassment may generally be defined as a "hostile work environment," and sexual harassment can be constituted by unwelcome sexual advances (477 U.S. 57, 1986). In addition, the Court has established that with regard to the injury inflicted by these advances, the damage need not be substantial for an injury to have occurred under Title VII (510 U.S. 17, 1993). These cases laid out the basic premise of sexual harassment-that it was constituted by sexual situations that an employee interpreted as injurious to their well-being or their position, even if the injury was not "significant." These interpretations left a large door open for claims of sexual harassment in the workplace.

However, the Supreme Court narrowed this window in 1998, when two separate cases addressed both the definition of a "hostile" workplace with regard to sexual harassment as well as expanded the definition to include "quid pro quo" harassment, in which an employee was offered a certain benefit (such as a raise or a promotion) in return for a sexual act. The first of these cases, Oncale v. Sundowner Offshore Services, established that sexual harassment, even in light of the Court's earlier definitions (as noted in the preceding paragraph), had to include conduct that "a reasonable person in the plaintiff's position would find severely hostile or abusive" (118 S. Ct. 998, 1998). The Court specified that the behavior to be included in this statute had to actually "alter the conditions of the victim's employment" (ibid.). The Oracle v. Sundowner Offshore Services case narrowed the definition of sexual harassment significantly, requiring that employment conditions be affected by the behavior and that it do so in a manner that was directly hostile or abusive.

The second sexual harassment case that the Court ruled on in 1998 expanded the specific legal definition of harassment, from the above-referenced abusive behavior or speech to include quid pro quo behavior that might not be directly interpreted as hostile or abusive, but constituted sexual harassment nonetheless. This case, Burlington Industries, Inc. V. Ellerth, established the legal idea that sexual behavior need not be hostile to be harassing -- the unwelcome suggestion of a certain benefit in return for sexual permission could also constitute sexual harassment (118 S. Ct. 876, 1998). In Ellerth's case, even though there was no adverse demotion or treatment as a result of refusing this offer, the fact that a quid pro quo offer was made was determined to be sexual harassment as described in Title VII.

These legal precedents become especially important to employers when considered in light of one more case, that of Faragher v. City of Boca Raton (118 S. Ct. 438, 1998). Faragher established that employers, including organizations as a whole (i.e., the City of Boca Raton) were responsible for the work environments and any unacceptable sexual harassment which occurred there (Marquand 1998). In Faragher, the City claimed that it was not responsible for the plaintiff's sexual harassment because it was "unaware" that it existed in the workplace; however, the Court ruled that this was not an acceptable rationale (118 S. Ct. 438). Instead, the Court established that higher-ups in the workplace ought to monitor and control the work environment, and that "reasonable care" ought to be exercised with regard to eliminating a hostile work environment (ibid.). However, these two cases also established that a "tangible employment action" had to occur as a result of the harassment, a decision which was later reiterated in Pennsylvania State Police v. Suders (No. 03-95, 2004). In Suders, the plaintiff asserted that the work environment was so hostile she eventually resigned as a result, and the Court utilized the upholding of her assertion to note that such a change of employment status was requisite for actionable suit aimed at an employer (Heller 2004).

This policy, however, is not to be understood as making an employer responsible for all conduct of employees under the aegis of the organization. Two early cases established that employers could not be held responsible for certain behaviors by employees; Corn v. Bausch and Lomb, Inc. established soon after the implementation of Title VII that the employer could not be held directly responsible for the personal actions of one employee (390 F. Supp 161). Likewise, Tompiks v. Public Service Electric and Gas Company noted that certain behaviors, specifically those that were "an unfortunate consequence of an inharmonious personal relationship," could not be construed as sexual harassment (422 F. Supp. 553).

In light of this responsibility to not only not participate in sexual harassment, but to ensure that it is not occurring in one's organization as a whole, supervisory boards and other governing bodies of businesses are becoming more and more involved in the work environment of their organizations. Unease regarding public perception of the company as well as fear of allegations of sexual harassment have resulted in more than a few recent firings of highly-ranked executives; Boeing's CEO, Harry Stonecipher, was removed after the discovery of his affair with a subordinate in the company, although no allegations of harassment were made (USA Today, 2005).

In addressing the potential for sexual harassment without infringing on employees' private lives, many organizations regulate interoffice relationships between workers. Some transfer one of the employees involved if they work in the same department. Some ask employees who… READ MORE

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