Sexual Harassment in the Workplace: Are Employers Doing Enough?

Sexual harassment has been a prevalent issue throughout our country in recent years, from the office of the President of the United States, to the military services and educational institutions. Even with widespread publicity about the risks of sexual harassment, surveys demonstrate that many businesses operating in the United States have yet to address the problem. Although, the latest reports show that sexual harassment has reached all echelons of management. The concept of sexual harassment has been around since the mid-1970s. Today, both classifications of sexual harassment are claimed against men and women, resulting in potential major losses for a company. The workplace is a place where one should feel comfortable. For this reason, companies have increased their efforts to prevent, reduce, identify and fix any acts of harassment promptly when they occur in the workplace. By companies taking preventive measures helps minimize the likelihood that liability for harassment will be placed on the employer.

Under Title VII of the Civil Rights Act of 1964, sexual harassment is a form of discrimination and although it is an offense committed by both females and males in assorted measures, it is predominately committed by males against females (Friedman, Joel, Marcia Mobilia Boumil, and Barbara Ewert Taylor 37). The Equal Employment Opportunity Commission (EEOC) issued its Guidelines on Discrimination Because Of Sex in 1980, which stated that sexual harassment violates S 703 of Title VII, and prohibits discrimination in compensation, conditions, or privileges of employment because of an individual's race, color, religion, sex, or national origin. This guideline recognized two types of harassment: quid pro quo and hostile-environment sexual harassment (EEOC Compliance Manual). Hostile environment harassment is where a person is subjected to unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to such an extent that it alters the conditions of the person's employment, and creates an abusive working environment. 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). However, for this to become a legal issue is determined by whether the comments and conduct are severe enough to create a hostile work environment for a reasonable person. 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 other workers does not mean that the conduct is welcome or invited.

The importance of an acceptable definition of sexual harassment was emphasized in October 1991 and in June 1998, first 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). After this incident was the time that employers really began to become aware of and heavily employ harassment policies in the workplace. Then on June 26, 1998 Supreme Court, made employers more liable for sexual harassment in the work place. Ruling on two sexual harassment cases, Faragher v. City of Boca Raton, and Burlington Industries Inc. v. Ellerth, the Supreme Court in essence stated that the employer is liable for the actions of the supervisor, even when the employer is unaware of the supervisor's conduct. An employer can no longer say that they did not know about the incident because the employee did not notify them, nor can they say that they were unaware of the supervisor's conduct (Supreme Court of the US Syllabus).

The Supreme Court also stated that the court will no longer heavily rely on the two different forms of sexual harassment: "quid pro quo" and "hostile environment." The Court called these two forms of sexual harassment of "limited utility" in assessing employer liability. As a result, the Supreme Court handed down two landmark decisions that clarified the liability standards for sexual harassment. These two decisions established that an employer is legally responsible to a victimized employee for sexual harassment by a supervisor with authority over that employee in two instances.

When the harassment leads to a tangible employment action, such as demotion, decreased compensation, significantly different work assignments, or termination, the employer's liability is absolute.

When there has been no tangible employment action, the employer is liable unless it can prove that

It has taken reasonable care to prevent and correct promptly any sexually harassing behavior (such as widely disseminating an effective policy and complaint procedure) and

The employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."(Supreme Court of the US Syllabus).

Supervisors, managers, coworkers, and even customers can be to blame for creating this type of environment. An employer can be held accountable for the actions of its own employees as well as its customers when their conduct creates a hostile environment. However, companies have defenses against legal responsibility. The key is to have a policy against harassment with an effective enforcement plan. The EEOC followed along with the Supreme Courts decision and has taken the stand that an employer can be held 'strictly liable' for harassment by employee's - 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 the co-worker harassment when the employer knows of the harassment and fails to take immediate and appropriate action (Webb quoted in Swisher 17).

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 (Woener and Oswald quoted in Wall 175). In hostile environment cases, a plaintiff must establish