Sexual Harassment Is Against the Law

Title VII of the 1964 Civil Rights Act

A long line of lower federal court decisions had upheld the EEOC sexual harassment guidelines ruling that sexual harassment is sex discrimination and violates Title VII of the Civil Rights Act before the issue reached the U.S. Supreme Court in 1986. In Meritor Savings Bank vs. Vinson, 106 S.Ct. 2399 (1986), a unanimous court in an opinion by Justice William Rehnquist held that not only can a Title VII violation be established by proving that employment decisions affecting the employee were based on whether the employee granted sexual favors or tolerated the harassment, but that a violation could also be established by showing that the harassment created a hostile or abusive work environment. Accordingly, if a hostile environment can be shown it is not necessary for the victim to prove that concrete employment benefits were denied or granted based on the harassment.

The court in Vinson also held that the appropriate question in a sexual harassment case is not whether the victim tolerated the harassment "voluntarily" in that the employee was not forced to participate against his or her will. Rather the question is whether the sexual behavior was "unwelcome." The court stated that the "totality of circumstances" should be taken into account in determining whether the sexual behavior was unwelcome.

The Supreme Court did not issue a definitive rule concerning the liability of employers for sexual harassment. While agreeing that employers were not automatically liable for the sexual harassment perpetrated by supervisors, the court also refused to establish a rule whereby employers could insulate themselves from liability by providing a grievance procedure or by issuing a policy statement.

The Vinson decision leaves no doubt that sexual harassment constitutes sex discrimination under federal law. This does not mean that every sexual harassment lawsuit will be successful. Based on Vinson as well as case law from lower federal courts, employees claiming sexual harassment are more likely to be successful where:

• the harassment can be linked to an adverse employment decision, for example, if the employee rejected the harassers advance and was fired, was given a poor performance evaluation or was denied a raise or promotion; 
  
  
• the employer knew or should have known about the harassment and did nothing to stop it; 
  
  
• the employer had no policies or procedures for dealing with sexual harassment or those that exist were ineffective. For example, if the harasser is a high management official, the employee may have no one to whom to complain. Similarly, if the grievance procedure requires the employee to complain to the supervisor, such a procedure may be ineffective if the supervisor is the harasser. 
  
  
• where the harassment was serious, frequent, and continued over some significant period of time. This is especially important in proving that a hostile environment existed when no tangible employment benefit was withheld. About the only generalizations that can be made are that occasional, insensitive remarks are insufficient to establish a violation of Title VII. On the other end of the spectrum, courts generally view sexual assaults as serious enough to create a hostile environment.
  
  

Sexual harassment claims have not been successful where:

• the plaintiff cannot directly relate the adverse action to the harassment often because the employer has a legitimate reason for taking the adverse action such as poor job performance; 
  
  
• the employer can show that the conduct complained about was not unwelcome; 
  
  
• the employer took prompt, corrective action upon learning of the harassment; or 
  
  
• the incidents of harassment were minor and infrequent.

There is no really clear rule courts use to determine whether offensive behavior is serious enough to create a hostile environment. However, in 1993 the U.S. Supreme Court in Harris vs. Forklift Systems 114 S.Ct. 367 the court resolved one important issue.

The court unanimously held that plaintiffs do not need to show psychological injury in order to prove that sexually offensive conduct created a hostile work environment. The proper standard is whether the conduct creates a hostile environment in the mind of a reasonable person. This can be demonstrated by showing that the conduct adversely affected the employees' job performance, discouraged them from remaining on the job or prevented them from advancing in their careers. The factors to be considered include the frequency and severity of the objectionable conduct, whether it is humiliating or threatening or whether it interfered with the employees' work performance.

In 1998, the U.S. Supreme Court ruled on two important cases that will make it easier to hold employers accountable for sexual harassment. In Burlington Industries, Inc. vs. Ellerth 118 S.Ct. 2257 (1998) and Faragher vs. Boca Raton 118 S.Ct. 2775 (1998), the Supreme Court held that when an employee refuses the unwelcome and threatening sexual advances of a supervisor which do not result in a negative employment action (e.g., demotion, discharge or undesirable reassignment), the employer can defend itself if it can prove that it has taken steps to prevent and promptly correct the harassment. Such steps could include adopting an effective complaint procedure or proving that the employee failed to take advantage of the employer's procedures.

However, when the harassment by a supervisor results in a negative employment action, the employer can't defend itself by trying to prove that it took steps to prevent or correct the harassment, or that the employee didn't use preventive or corrective opportunities.

Other legal protections against sexual harassment

State Fair Employment Practice (FEP) laws.

 Most state FEP laws have language similar to Title VII and therefore presumably include sexual harassment as prohibited sex discrimination. Indeed, there have been successful suits brought under state FEP laws. The importance of these laws are that they provide a choice of forum for plaintiffs. If the federal courts in a particular region tend not to be especially receptive to sexual harassment claims, the plaintiff's attorney may recommend filing in state court under state law.

State tort law.

 The torts (civil wrongs) of intentional infliction of emotional distress, wrongful discharge, intentional interference with an employment contract, invasion of privacy and assault have been invoked with varying degrees of success in sexual harassment cases.

State unemployment compensation law.

Some state courts have recognized that quitting a job because of sexual harassment may constitute sufficient cause for leaving to qualify an employee for unemployment compensation benefits.

Such cases are encouraging. However, there is no uniformity among state employment compensation agencies concerning whether a person who quits because of sexual harassment is entitled to unemployment insurance benefits. In some states the issue has not yet surfaced. Unemployment insurance laws and regulations need to be checked in each state and revised, where necessary, to insure that sexual harassment is defined as just cause for quitting under state unemployment compensation law. Such action has been taken, for example, by the Illinois legislature in 1983.

Remedies.

Under Title VII, successful plaintiffs may be awarded restoration of pay and benefits lost as a result of the harassment. In 1991, Title VII was amended to provide a damages remedy of up to $300,000.

Some state tort law claims permit unlimited damages which is a major reason these claims are often included along with the Title VII claim.