Sexual Harassment

Overview

Sexual harassment in the workplace occurs when an employer subjects an employee to unwelcome verbal, nonverbal, or physical conduct of a sexual nature that affects the employee's employment, interferes with the employee's work performance, or creates a hostile work environment. Victims of sexual harassment may be anyone affected by the unwelcome conduct or statements.

Civil rights and employment laws in the United States protect both men and women from sexual harassment in the workplace. Federal and state laws prohibit also prohibit employer from retaliating against an employee who files a discrimination charge under those laws.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on their race, color, religion, sex or national origin. The prohibition against sex discrimation encompasses sexual harassment. The Act applies to most employers with 15 or more employees, including the federal government, state and local governments, labor organizations, and employment agencies.

Under Title VII, employers also may not retaliate against an individual for refusing to submit to sexual harassment or filing discrimination charges and participating in related proceedings against an employer. Retaliation is unlawful whether the employee is suspended, demoted, fired, or any other action that negatively affects an employee's job treatment or status.

In 1972, the Congress passed the Equal Employment Opportunity Act which created the Equal Employment Opportunity Commission (EEOC) and empowered it to enforce Title VII of the Civil Rights Act of 1964. The EEOC created regulations defining and prohibiting sexual harassment as a form of sex discrimination, which may be found at 29 C.F.R Part 1604.11.

Quid Pro Quo Sexual Harassment

These regulations define two types of sex discrimination. The first, quid pro quo, occurs when an employer requires an employee to submit to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature as a condition of employment, either implicitly or explicitly. This occurs, for example, if an employer forces an employee to engage in sexual conduct to keep his or her job. Quid pro quo harassment also occurs when another employee makes decisions about the terms and conditions of an employee's job based on that employee's submission to verbal, nonverbal or physical conduct of a sexual nature. Quid pro quo harassment as a form of sex discrimination was first recognized in Williams v. Saxbe, 413 F.Supp. 654 (1976).

Hostile Work Environment

Another type of sexual harassment prohibited by federal law is that which creates a hostile work environment, which occurs when unwelcome verbal or physical conduct of a sexual nature unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment. Anyone in a workplace can create a hostile work environment, including co-workers and customers of a business—not just the employer or a supervisor.

The Supreme Court recognized this form of sexual harassment as a violation of Title VII of the Civil Rights Act of 1964 in Vinson v. Merit One Savings Bank, 477 U.S. 57 (1986). In that case, the Court established the standards for by which courts now evaluate whether conduct was unlawful and when an employer will be held liable. Courts must consider the specific circumstances of each case—what alleged incidents occurred, where, how often—to determine whether the conduct was frequent and serious and an employee was in fact subject to a hostile work environment. Where a hostile environment is found, the unwelcome sexual conduct is a regular part of the workplace; a single incident usually is not enough for a court to find that a hostile work environment exists.

Additional Protections Against Sexual Harassment

The Civil Rights Act of 1991 provided employees with additional protections against sexual harassment. It allows courts to award punitive damages in cases of intentional discrimination, rather than limiting victims to economic damages they have incurred. The Act also allows an award of attorneys' fees and the possibility of jury trials under certain circumstances.

Class action sexual harassment cases may now be filed, in the wake of Jenson v. Eveleth Taconite Co. A 2002 book, Class Action, was made into a film, North Country, which portrays the events surrounding this case, which ended in a $3.5 million settlement for the female mine worker victims of sexual harassment.

Employers may be held liable for sexual harassment by supervisors of employees, the Supreme Court held in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Whether or not an employer is held liable for sexual harassment committed by its employee depends upon whether the employer took reasonable measures to prevent, and immediately stop, any unwelcome sexual conduct within the workplace.

State Laws

Some states prohibit sex discrimination, specifically sexual harassment, in the workplace and require employers to institute workplace anti-harassment programs. Employers must comply with all applicable state and federal laws. Specific regulations and rights vary from state to state and may be enforced by different state and local agencies, including human rights commissions, labor and employment agencies. State laws may afford employees greater protections than federal laws; in such cases, state law is applied instead of federal law.