Sexual Harassment in the Workplace - Essay Example

? Sexual Harassment in the Workplace from a Legal Perspective Incidence of sexual harassment in the workplace is continuously escalating, and remains largely directed toward female employees. According to recent figures, there are still a higher number of female complainants than male plaintiffs. Federal and state anti-discrimination laws are intended to protect employees from sexual harassment. However, there are problems inherent in the both external and internal anti-harassment policies. The Equal Employment Opportunity Commission (EEOC) has discovered several major weaknesses in the anti-harassment policies and processes in many agencies. This essay discusses the definition of sexual harassment, as well as the relevant laws, case laws, and the current figures and scenarios. Introduction Cases of sexual harassment in the workplace is well documented and widely known. Catharine MacKinnon led the campaign for sexual harassment to be acknowledged as a rightful issue under the 1964 Civil Rights Act’s sex discrimination requirements (Mink 64). Before sexual harassment was acknowledged by the U.S. Supreme Court as a valid type of sex discrimination forbidden by federal law in its resolution in Meritor Savings Bank v Vinson in 1986, numerous lower courts had wrestled with the difficult problems posed by sexual harassment (Mink 64). Numerous lower courts had declined to acknowledge sexual harassment as a valid ‘cause of action’, claiming that courts should not investigate or examine explanations of human conduct in the workplace. Human conduct or behavior, according to these courts, embodied a ‘slippery slope’ that would require a much larger number of federal judges, or that it would dramatically increase the number of court cases (Achampong ix). The invalidation of these decisions was an acknowledgment of the reality that sexual harassment is a criminal conduct that brings about a valid cause of action. Definitions, Relevant Laws, and Case Laws The 1990s have witnessed a sharpened awareness in society about sexual harassment, and a persistent, very important move toward total prevention of sexual harassment in the workplace (Bakirci 17). However, there is no direct and simple definition for sexual harassment. However, any definition in any policy should be clear and straightforward without leaving out the key legal principles (Orlov & Roumell 61): Sexual harassment is against the law. Any conduct of a sexual nature with or between coworkers or other managers could be considered sexual harassment. Anyone who breaks the law will be punished. All policies pertaining to sexual harassment must explicitly define that sexual harassment is a type of sexual discrimination prohibited by Title VII of the 1964 Civil Rights Act or federal employment discrimination laws and nearly all other anti-discrimination laws. The policies of the Equal Employment Opportunity Commission (EEOC) policies sexual harassment must be used. Most companies integrate them into their guidelines because they provide a quite precise and definite legal description of sexual harassment. The EEOC defines sexual harassment in this way (Achampong 201): Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes 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 individuals, 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 work environment. Nevertheless, any definition of sexual harassment must not end with the EEOC policies. They are simply the basis for a definite and brief definition. The various forms of sexual harassment should be precisely defined and clarified in an understandable language. Lastly, it is important to clarify ‘unwelcome’ sexual behavior as a component of the definition of sexual harassment. This idea is usually not easy to express because it is not consistently obvious that specific sexual conducts are unwelcomed (Ford, Notestine, & Hill 67). Workers are protected by federal and state laws against sexual harassment in the workplace. Federal law solutions for discrimination in the workplace are founded on Title VII of the 1964 Civil Rights Act, which concerns employers with at least fifteen workers. Employees of smaller organizations are generally protected by the same state anti-discrimination laws. Sexual harassment cases are dealt with by subnational and national governments (Kelly, Kadue, & Mignin 39). In spite of the 1964 Civil Rights Act, the EEOC did not acquire the authority to enforce before 1972. The Employment Opportunity Act granted the EEOC in 1972 the authority to file claims for individuals with workplace complaints. State fair employment institutions normally collaborate with the EEOC in the handling of complaints. There are state laws which are intended mostly to support federal enforcement. However, only several states have endorsed laws prohibiting sexual harassment, and some of these state laws do not support disciplinary or compensatory reparations (Craig 40). The 1991 Civil Rights Act granted workers further protections against sexual harassment. It permits courts to grant punitive compensations in cases of deliberate harassment, instead of confining victims to economic injuries they have sustained. Moreover, the Act permits a granting of lawyers’ remunerations and the option of jury litigations under specific conditions (Goldstein 234). Employers could be held responsible for sexual harassment by managers of workers, the Supreme Court decided in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. The decision to hold an employer responsible for its employee’s adverse sexual behavior in the workplace depends on whether the employer implemented appropriate steps to discourage, and quickly end, any harmful sexual behavior in the workplace (Conte 2-102). There are two common classifications of sexual harassment in the workplace—‘quid pro quo’ harassment and ‘hostile work environment’ harassment. ‘Quid pro quo’ harassment is defined by courts as “unwelcome sexual conduct that constituted a term of employment” (Ford et al. 66). If the employee was able to prove that ‘quid pro quo’ sexual harassment had taken place, courts hold the employer responsible, and the victim could get financial reparations from the employer. In contrast, ‘hostile work environment’ harassment is defined as “unwelcome sexual conduct that unreasonably interfered with an employee’s job performance or created an intimidating, hostile, or offensive work environment” (Ford et al. 66). Sexual puns, unwanted advances, or posters of naked men and/or women could create a hostile work environment if amply prevalent and insistent. Employers may be held indirectly responsible for the presence of a hostile work environment or directly responsible if a worker was able to prove that the employer was aware of the situation and ignored it or failed to address the problem. In the Barnes v. Train (1974) -- the first case of sexual harassment-- the complainant stated that she was dismissed because she declined to take part in an ‘after hours’ liaison with her superior (Strickland 493). The District of Columbia’s district court decided that this form of discrimination was not included in the Civil Rights Act and declined to grant her reparation. In Barnes v. Costle (1977), the United States Court of Appeal for the District of Columbia claimed that a woman coerced to take part in a sexual affair to save her career would not have been victimized “but for her womanhood”, establishing a precedent that victims of sexual harassment have legal rights to receive reparations (Strickland 493-494). A complaint filed in 1986 by a bank employee, Michelle Vinson, gave rise to a milestone U.S. Supreme Court decision on sexual harassment. The Court claimed that under Title VII of the Civil Rights Act of 1964 sexual harassment involved the making of a hostile working environment (Craig 356). In addition, the Court claimed that the presence of a grievance process and an anti-sexual harassment policy did not fully excuse an employer from responsibility, even if the victim did not make an appeal. It is not important whether a victim eagerly allowed the advances or yielded against his/her will on condition that the sexual advances could be proven to be unwanted or unwelcome. However, the Court’s decision in the Vinson case still accommodated the idea “she brought it on herself” by claiming that a complainant’s “sexually provocative” gestures, speech, and clothing may be pertinent to whether the defendant’s suspected undesirable behavior was really undesirable (Strickland 494). One of the problems with sexual harassment is that it is very difficult to prove. In order to prove that a hostile work environment sexual harassment has taken place, the victim should be able to ascertain that s/he experienced unwelcome sexual harassment; the affiliation between the employer and the suspect is sufficient to hold the employer responsible; the harassment was adequately pervasive or severe to the point of changing the employment situation and forming a hostile working environment; and the sexual harassment was provoked by his/her sex (Kelly et al. 32). In order to be a valid cause of action, sexual harassment in the workplace should be adequately pervasive or severe to the point of changing the situation of the victimized worker’s employment and creating a hostile environment. One incident of hostile work environment sexual harassment may be adequate if the advances are sufficiently severe, but recurrent or continuous incidents raise the pervasiveness of the episodes, so as to make a rational individual conclude that s/he is being harassed because of its recurrence. An employee can file a hostile work environment complaint when the sexual harassment is not aimed at the complaining worker, if the sexual harassment invaded or affected the work environment of the complaining employee. Hence, a worker can file a hostile work environment complaint if the worker saw the harassing action and the action was sufficiently pervasive or severe to be regarded harassment by a rational individual (Craig 352). On the other hand, in order for a worker to substantiate that the sexual harassment in the workplace s/he experience was because of his/her sex, the worker should prove that s/he was treated in a different way due to his/her sex. If the sexual advances or gender-based language, like conversation about sex in the workplace, sexual jokes or gestures, or lewd speech, are aimed at an employee or at an employee’s sex generally, this behavior will fall under sexual harassment in a hostile work environment if it is pervasive or severe enough. It can be very hard to decide whether flirting in the workplace will be accepted by the courts as sexual harassment without having knowledge of the accurate details of a specific case. Nevertheless, when flirting in the workplace is pervasive or severe and unwelcome, a court may deem it illegal sexual harassment. Due to the fact that there can be a certain extent of ambiguity about whether advances or flirting are unwelcome, it is vital for the victim to clarify or prove that the advances or flirting are unwelcome (Mink 83). The ‘hostile environment’ form of sexual harassment is actually more recent and in several ways more difficult to prove and resolve. In the Meritor Saving’s Bank v. Supreme Court-- in which the Supreme Court decided that sexual harassment by a manager or superior was sex discrimination stated in Title VII of the Civil Rights Act, and that creating a hostile working environment is tantamount to harassment although no economic damages were involved—the courts should not only rectify an outcome, such as loss of promotion or job because of sexual harassment, but they should also take into consideration the psychological features of the workplace (Conte 2-54). The Meritor Saving’s Bank v. Supreme Court case claims that sexual behavior that is sufficiently severe as to distress or traumatize the worker psychologically is considered sexual harassment. Here, the worker should prove that the sexual advances damaged her capacity to work efficiently or seriously harmed her psychological health. The Broderick v. Ruder (1988) case drew much interest because a female employee who was not directly victimized by sexual harassment made use of evidence to prove that unwelcome sexual behavior directed toward other colleagues formed a hostile environment (Conte 3-275). Hence even a complainant, who is not the direct victim of sexual harassment but employed in a pervasive hostile environment generated by unwelcome sexual conduct aimed at colleagues, can have a legal complaint of sexual harassment as stated in Title VII. However, there have been disagreements on what makes up a hostile environment and this is once more confounded by incompatible criteria- ‘reasonable person vs. reasonable man vs. reasonable woman’ (Strickland 494). For instance, in the Rabidue v. Osceola Refining Company (1986) case, the Sixth Circuit court claimed that a reasonable individual would not think that posters of nude women alongside repeated vulgar sexual speech are hostile (Achampong 247). Basically, this court established that the reasonable male would not think that this is undesirable and if women seek employment in traditionally male-dominated jobs, they would have to adapt to the male-dominated workplace. But a judge in Florida’s District Court stated in 1991 that posters of naked women did in fact generate a hostile workplace. Judge Howell Melton stated that in the case of Jacksonville Shipyards the atmosphere that the boy’s club produced by posters of nude women built an environment damaging to fairness at work (Strickland 494). A judge in the Ninth Circuit’s U.S. Court of Appeals claimed that sexual harassment has to be viewed from the point of view of a reasonable woman because behavior that may not insult men may be offensive to women (Strickland 494). Moreover, Judge Robert R. Beezer claimed that because women comprise unevenly sexual violence and rape cases, they have a bigger motivation to be worried about sexual behavior (Goldstein 247). Males, who are infrequent targets of such offenses, may perceive sexual conduct differently—not understanding that specific sexual behavior may be undesirable or offensive to women. The Miller v. Bloomington Hooters, Inc. case also deals with the problem of whether the Hooters restaurant’s rule obliging their female servers to wear sexy, daring uniforms generated a sexually provoking environment which led to harassment from restaurant managers and customers (Strickland 494-495). The Current Figures and Scenario: Does anti-sexual harassment laws protect the rights of the victim? The number of complaints submitted to the EEOC has steadily dropped over the recent years. Nevertheless, it is essential to mention that this number only includes formally filed grievances, and that a large number of sexual harassment cases are not reported. Roughly 16,000 complaints were submitted in 1997 (Workharassment.net para 2-3). However, this number decreased significantly after ten years. Most of the grievances were filed by women, but the number of grievances submitted by men is growing, alongside growing numbers of males formally complaining their female bosses. Still, according to a 2004 research, the number of female complainant is higher than the number of male plaintiff. As reported in the survey of the Society for Human Resource Management (SHRM), several companies disclosed a rise in the number of sexual harassment complaints within a year. Almost twenty percent of companies disclosed that sexual harassment complaints were filed by both female workers and male workers similarly (SHRM para 1). This increasing number of sexual harassment complaints may be attributed to the findings of EEOC. According to EEOC’s program assessments, some of the anti-harassment measures of agencies are weak and defective in their capacity to discourage and address non-sexual harassment in organizations. The EEOC launched minimum criteria and rules for the use of agencies in creating anti-harassment guidelines. A grievance procedure and anti-harassment policy must include, at a minimum, the below components (EEOC para 10-12): A clear explanation of prohibited conduct; Assurance that employees who make claims of harassment or provide information related to such claims will be protected against retaliation; A clearly described complaint process that provides accessible avenues for complainants; Assurance that employer will protect the confidentiality of the individuals bringing harassment claims to the extent possible; A complaint process that provides a prompt, thorough, and impartial investigation; and Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Even though EEO units in numerous agencies are generally tasked to develop anti-harassment guidelines, it is imperative to bear in mind that the EEO anti-harassment guidelines and processes are not present for the same objectives. The EEO programs are intended to correct the outcome of the discrimination by means of monetary reparations and to deter the reoccurrence of the illegal discriminatory behavior (EEOC para 13). But the EEO programs cannot oblige an agency to take disciplinary measures against its workers. However, the internal anti-harassment policy is designed to implement the necessary corrective measures to stop harassing behavior. The objective of the anti-harassment policy is to discourage harassing behavior before it can turn pervasive or severe (EEOC para 13-15). The EEOC, in the case of Horton v. Department of Housing and Urban Development (2004), discovered that the agency had committed discrimination against the plaintiff because of her racial background and sex (EEOC para 14-15). The plaintiff claimed that her manager treated her in a disdainful, patronizing way by meticulously inspecting her work and allocating her job to other employees. The agency was not able to bypass liability because it failed to determine the first component of the confirmatory defense—that it thoroughly and systematically tried to discourage and rectify appropriately any harassing conduct. The EEOC discovered that the document did not have any proof to confirm that the agency implemented anti-harassment guidelines, or a protocol for filing harassment complaints. Moreover, the anti-harassment policy of agencies did not include all of the protected aspects, such as age, religion, sex, and race. Some agency officers described their methods for dealing with harassment, but did not write down these methods, or distribute them to employees. Although a firmly stated policy statement could verify the dedication of the agency’s management to discouraging harassment, appropriate, efficient methods for dealing with harassment complaints also are needed (Bakirci 22). These failures or weaknesses hinder successful prevention and rectification of sexual harassment in the workplace. If these failures are not addressed effectively sexual harassment complaints will continue to increase. Conclusions Sexual harassment in the workplace is a growing problem in the United States and elsewhere. Federal and state anti-discrimination laws protect employees from sexually charged conduct in the workplace. However, there were some barriers to the effective prevention of sexual harassment at work, as shown by the various cases discussed. These barriers largely contribute to the continuous increase in the number of sexual harassment complaints in the workplace. Works Cited Achampong, Francis. Workplace Sexual Harassment Law: Principles, Landmark Developments, and Framework for Effective Risk Management. Westport, CT: Greenwood Publishing Group, 1999. Print. Bakirci, Kadriye. “Sexual Harassment in the Workplace in Relation to EC Legislation”, International Journal of Discrimination and the Law 3.1 (1998): 3-28. Print. Conte, Alba. Sexual Harassment in the Workplace: Law and Practice 4E. New York: Aspen Publishers Online, 2010. Print. Craig, Clyde. Basic Labor and Employment Law for Paralegals. New York: Aspen Publishers Online, 2008. Print. EEOC. “Model EEO Programs Must Have an Effective Anti-Harassment Program.” U.S. Equal Employment Opportunity Commission, 2013. Web. 25 Nov. 2013. Ford, Karen, Kerry Notestine, & Richard Hill. Fundamentals of Employment Law. New York: American Bar Association, 2000. Print. Goldstein, Leslie. Contemporary Cases in Women’s Rights. Madison, Wisconsin: University of Wisconsin Press, 1994. Print. Kelly, Joseph, David Kadue, & Robert Mignin. “Sexual Harassment in the Workplace: A United States Perspective”, International Journal of Discrimination and the Law 7.1-4 (2005): 29-85. Print. Mink, Gwendolyn. Hostile Environment: The Political Betrayal of Sexually Harassed Women. New York: Cornell University Press, 2000. Print. Orlov, Darlene & Michael Roumell. What Every Manager Needs to Know About Sexual Harassment. New York: AMACOM, 2005. Print. SHRM. “Is Workplace Sexual Harassment on the Rise? SHRM Poll.” Society for Human Resource Management, 16 Apr 2010. Web. 25 Nov. 2013. Strickland, Ruth. “Sexual Harassment: A Legal Perspective for Public Administrator”, Public Personnel Management 25.4 (1995): 493+ Print. Workharassment.net “Sexual Harassment in the Workplace.” Workharassment.net, 2010. Web. 23 Nov. 2013. Print. Read More