Sexual Harassment

Unraveling, Understanding, and Complying

With Sexual Harassment Laws Today

In 1986, the case of Meritor Savings Bank v. Vinson, was presented to the United States Supreme Court. In its first ruling on sexual harassment, the court changed our working environment forever when they determined that sexual harassment, including a hostile work environment, was an illegal form of employment discrimination (Felder 306).

The Civil Rights Act, passed in 1964 by Lyndon Johnson, was the first federal law that would eventually make discrimination against women illegal. It is interesting that when the original civil rights bill was introduced it did not include discrimination against gender. According to Lynne Eisaguirre, author of Sexual Harassment, "Discrimination based on gender is attached to the bill at the last moment, when conservative Southern opponents introduced an amendment prohibiting discrimination on the basis of sex; they assume that adding sexuality equality is so preposterous that the amendment will scuttle the entire bill...The Johnson administration wants the Civil Rights Act passed so badly that it decides not to oppose the amendment." The passing of this federal law opened the door for employees to seek judicial remedies for violations of their legal rights.

The term sexual harassment was actually coined in the 70's when women entered the workforce in record numbers. In a 1991 edition of CQ Researcher, Charles Clark wrote "The 1970s ushered in an era of dramatic efforts to curb workplace discrimination of all forms. The classic scenario of bosses blackmailing subordinates for sex has steadily broadened. Legally defined sexual harassment now includes lascivious comments, off-color jokes and 'leering,' murky areas that raise debates over freedom of speech. . . many companies have adopted guidelines and grievance procedures. Still, courts are crowded with sexual harassment cases." Three predominant cases in the 1970s, Miller v. Bank of America, Corne v. Bausch & Lomb, and Barnes v. Train, failed miserably when the courts interpreted "sexual harassment based on sex as a 'personal matter' between two individuals, and not as action directed at or affecting groups of people." (LeMoncheck and Sterba 137). The first successful case alleging sexual harassment occurred in 1976, in William v. Saxbe, a woman sued her employer alleging that her supervisor fired her when she refused to have sex with him. The judge found that her rights under Title VII of the Civil Rights Act had been violated. This case proved to be a landmark decision that paved the way for future court rulings (Crouch 244).

The Civil Rights Act also provided us with the Equal Opportunity Commission (EEOC). In November 1980, the EEOC, chaired by Eleanor Holmes Norton, made an effort to define sexual harassment. The EEOC Guidelines states:

Harassment on the basis of sex is a violation of the law. Unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature constitute 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 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 work environment.

Today, we recognize these as two main categories of sexual harassment - quid pro quo (guideline 1 & 2) and hostile work environment (guideline 3). I believe the best description of quid pro quo can be found in The Legal Guide for Women, by the American Bar Association:

Quid pro quo sexual harassment occurs when your employer or someone in the superior chain of command makes a job or a job benefit (e.g.., working hours, raises, or transfers) conditional on your participating in sexual activity.

In cases of a hostile work environment, there doesn't need to be an exchange of sexual favor or any change in work related benefits. Instead, "the workplace is permeated with discriminatory intimidating, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (qtd in Paniccia 82). The first case using the hostile work environment argument was successfully tried in the early 1980s in Brown v. City of Guthrie. In this instance, the employee was able to show that her work environment was hostile, offensive, and unbearable (LeMoncheck and Sterba, 138).

The definition of sexual harassment has been extended twice since these initial rulings. In 1991, an appellate court in Florida, found that nude pinups in the workplace constituted a hostile work environment. In Robinson v. Jacksonville Shipyards, the judge noted "A pre-existing atmosphere that deters women from entering or continuing in a profession or job is no less destructive to and offensive to workplace equality than a sign declaring men only." (qtd. in Sterba 98). And in 1993, the Supreme Court broadened the definition by stating that "to be found illegal a hostile work environment need not be psychologically harmful but only reasonably perceived as abusive." (101). Further, the Ninth Circuit Court of Appeals in San Francisco ruled that sexual harassment claims must be evaluated based on a "reasonable woman" standard instead of the "reasonable person" standard normally used. The court felt that a reasonable woman standard would be more appropriate since behavior that some men find acceptable would be considered sexual harassment to some women (LeMoncheck and Sterba 142).

In June of 1998, The Supreme Court ruled on two cases of sexual harassment, Faragher v. City of Boca Raton, and Burlington Industries Inc. v. Ellerth, increasing the liability of employers for incidents of sexual harassment involving supervisors. In this ruling, it was determined that the employer was responsible for the conduct of the supervisors even if the employer was completely unaware of the supervisor's behavior. Based on this, employers can no longer claim that they did not know about the sexual harassment even if the employee did not inform them (Saguy 34).

In 2004, California legislation expanded the law to include transgender as a protected class. In addition, they added that employers might be held liable for failing to protect their employee's from harassment by anyone (vendor, student, employee, customer, etc.) in