Sexual Harassment In The Workplace

Sexual Harassment in the Workplace:

Are Employers Doing Enough?

Within the last ten to fifteen years companies have seen an immense increase in the number of harassment lawsuits. Employers are frequently held liable for acts of harassment committed in the workplace even when they are not aware that such acts are taking place, and prevention is the best tool to eliminate sexual harassment on the job. For that reason, employers have increased efforts to take steps designed to prevent acts of harassment, and to identify and fix such acts promptly when they do occur in the workplace. By a company taking these steps, it minimizes the likelihood that liability for harassment will be placed on the employer. Title VII of the Civil Rights Act of 1964 discusses harassment in the nature of race, religion, sex and national origin, however it does not specifically mention sexual harassment (Friedman, Joel, Marcia Mobilia Boumil, and Barbara Ewert Taylor 37).

In 1980, the Equal Employment Opportunity Commission issued its Guidelines on Discrimination Because of Sex. The Guidelines state that sexual harassment violates S 703 of Title VII, which prohibits discrimination in compensation, conditions, or privileges of employment because of an individual's race, color, religion, sex, or national origin. The Guidelines recognize two forms of sexual harassment: quid pro quo and hostile-environment sexual harassment. (Achampong 17)

Hostile environment harassment generally involves degrading an individual based on their race, religion, gender or national origin, and creating an intimidating or offensive working environment. It can consist of unwelcome verbal or physical conduct. A single isolated incident or comment is generally not sufficient to establish a hostile environment unless the conduct is extremely outrageous and excessive (Friedman, Joel, Marcia Mobilia Boumil, and Barbara Ewert Taylor 9). Examples of hostile environment harassment include: "pornography, sexual conversations, sexual and sexist jokes, girlie posters and the like..." (Feary quoted in Wall 94). The issue is whether the comments and conduct are severe enough to create a work environment that a reasonable person would find hostile. Such comments and conduct must also be unwelcome to the victim in the sense that the victim did not invite the comments or conduct. The fact that a worker tolerates racial or sexual remarks or attempts to laugh them off in order to fit in with the other workers does not mean that the conduct is welcome or invited.

The importance of an adequate definition of sexual harassment was underscored in October 1991, when Clarence Thomas went before the Senate for confirmation of his seat on the U.S. Supreme Court. Although it was clear that if Anita Hill's charges were true, Thomas did sexually harass her, the media gave considerable coverage to the problem of deciding what constitutes sexual harassment (Wall 12).

It was during this time that employers really began to take notice and heavily implement harassment policies in the workplace.

Supervisors, managers, coworkers, and even customers can be responsible for creating a hostile environment. An employer can be held liable for the actions of its own employees as well as its customers when their conduct creates a hostile environment. However, companies have defenses against liability. The key is to have a policy against harassment with an effective enforcement plan. The EEOC has taken the position that

...the employer may be held 'strictly liable' for harassment by supervisors--meaning even when the employers is not aware of the harassment and even when there is a policy forbidding such behavior... the employer is liable for co-worker harassment when the employer knows of the harassment and fails to take immediate and appropriate action (Webb quoted in Swisher 17)

When coworkers or customers create a hostile environment, a company will not be held liable unless it had prior knowledge that the harassment occurred and failed to act.

Quid pro quo, the other type of harassment, occurs only in relation to sex discrimination. Sexual harassment has been defined by the EEOC 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 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... (Friedman, Joel, Marcia Mobilia Boumil, and Barbara Ewert

Taylor 114).

When a job benefit is directly tied to submitting to unwelcome sexual advances, the employee is a victim of quid pro quo harassment. Good examples would be a supervisor promising an employee a raise is she will go out on a date with him, or telling an employee she will be fired if she does not have sex with him (Jacobs and Bonavoglia quoted in Gerdes 145). Although sexual harassment is most often behavior engaged in by men against women, that's not always the case. There are instances in which women sexually harass men and where people harass others of their own gender (Friedman, Joel, Marcia Mobilia Boumil, and Barbara ewert Taylor 11). Only a person with supervisory or managerial authority can engage in quid pro quo harassment, since it requires the offender to have the authority to grant or withhold job benefits.

Employers will always by liable for sexual harassment in their workplace that is known to them. Unless they take prompt and effective measures to remedy the situation they may incur liability. In quid pro quo cases, employer liability will depend primarily on whether the harassing employee can be viewed as the agent of the employer. In general, an employer is strictly liable when a supervisor engages in quid pro quo harassment. This means that even if the employer has no knowledge of the supervisor's conduct and has a policy forbidding harassment, the employer is still responsible for the supervisor's quid pro quo harassment