Sexual Harassment in the United States – From the Beginning
Sexual Harassment is a legal term which describes a type of sex discrimination and harassment that violates Title VII of the Civil Rights Act of 1964. Title VII is a the federal law which makes employment discrimination based on sex unlawful.
Originally, the provision covered discrimination based on gender, only. However, in 1977 the U.S. Circuit Court of Appeals for the District of Columbia ruled
that ‘quid-pro-quo’ type sexual harassment – the implication that job benefits will be given or removed if sexual conduct is tolerated – could, on its own violate Title VII.
This assumption was built upon in 1980 when the United States’ Equal Employment Opportunity Commission (EEOC) recognised that in addition to quid-pro-quo, sexual conduct which creates a hostile environment also constituted a form of harassment and discrimination. The Supreme Court backed this decision in 1986.
In the decade that followed issues arose around who was to take responsibility for harassment caused by employees. In 1998, the Justices created a theory of employer liability for sexual harassment which constituted that employers were legally liable for sexual harassment committed by employees if those employees were in a supervisory role. In 2013, in the case of Vance vs. Ball State University, the Supreme Court built upon this theory, defining a supervisory role as someone with the ability to take tangible action against an employee.
These legal parameters continue to exist today. While employers are not legally liable for harassment which is not committed by someone in a supervisory role, it is unlawful for employers to fail to recognise a complaint of sexual harassment and to fail to take appropriate remedial action in a timely, confidential, fair and unbiased manner.
In the 1990’s, definitions of sexual harassment were further elaborated and developed by the United States Equal Employment Opportunity Commission and released publicly.
In 2017, for the first time in over 20 years, the EEOC announced that it had updated its guidelines on sexual harassment based on cases over the last several years – they claimed that it was coincidental that these update came around at the same time as the #MeToo Movement. The guidelines were unanimously approved by the commision on November 7th, 2017 and were sent to the Office of Management and Budget (OMB) for approval. Once the OMB approves these guidelines they will be made public.
Furthermore, in October 2017, the EEOC updated its training program on respectful workplaces which focuses on harassment prevention.
How is Workplace Sexual Harassment Defined Today?
Today, according to the EEOC sexual harassment can be defined as:
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” – The EEOC
In addition, the EEOC recognises sexual harassment when it is implied, either implicitly or explicitly, that:
Submission to such conduct (sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature) is a necessary term, condition, or requirement for employment;
That rejection of, or submission to, such conduct is used as a basis or deciding factor in job-related decisions relating to the subject of such conduct;
This conduct negatively and unreasonably impacts on an individual’s work performance and contributes to a hostile, offensive, and intimidating work environment.
Commonly, the various forms of sexual harassment are divided into two categories, ‘quid-pro-quo’ and ‘hostile environment’:
Quid-pro-quo: When it is explicitly stated or implicitly implied that conditions and terms around a person’s employment – such as whether to hire them or not, or how much to pay them – and/or their qualification for certain employment benefits, perks, privileges, or progression in the company – such as a promotion or bonus – is based on their acceptance or submission to conduct of a sexual nature.
For example: An employer offers an employee a promotion on the basis that the employee goes on a romantic dinner date with them.
Hostile environments: When the (often repeated) un-welcomed sexual conduct of an individual or group significantly impacts a person’s ability to perform their job and/or creates an offensive, hostile, or intimidating work environment.
For example: If an employee regularly watches porn on their computer in the presence of a colleague who finds this behaviour offensive.
How is a ‘Workplace’ defined?
A workplace is generally considered to be anywhere where a person carries out work in exchange for money; however, the exact definition can be hard to pin down. A workplace could be your regular day-to-day work environment, such as your office or the restaurant where you work, or it can outside of the day-to-day work environment – for example, someone’s home could be a workplace for an electrician working on a job there.
Other situations where workplace sexual harassment can occur include: at a work-related event or conference; on a work-related trip; on a day-out organised by work; at a work-related social event; at an interview or meeting at a coffee shop or restaurant.
If you are unsure as to whether you were harassed at a workplace, you should contact BeOnAlert for advice using the live chat service on our website.
The Subtleties of Sexual Harassment
Sexual Harassment comes in many forms and guises – it can be verbal, non-verbal or physical – and it is often hard to define. Sexual harassment can be very subtle, such as a lewd look or brushing up against someone. wWhen a court or legal professional looks at a case they are encouraged to consider the “totality of the circumstances”.
Factors that usually contribute to a sexual harassment claim being acknowledged is that the sexual conduct was:
a) unwanted and unwelcome;
b) repeated (unless it is the quid-pro-quo type of sexual harassment, in which case one instance can be enough );
c) severe and/or pervasive enough that it would cause any ‘reasonable person’ of the same sex experiencing the same circumstances significant distress, offense, intimidation, or discomfort thus creating a hostile environment and/or affecting their ability to do their job; and/or
d) affect a person’s terms, conditions, or privileges of employment.
It is important to bear in mind that even if you succumb or submit to sexual conduct or advances and then change your mind, you may still have a case.
If you have experienced quid-pro-quo harassment then the threat of economic loss or loss of employment or job privileges is enough to claim a case.
It is also important to note that a hostile environment can affect not only the subject (if any) to whom the sexual conduct is directed, but also those around them. For example, if you are significantly affected by the way your colleagues tease another colleague about the size of his penis then this could be grounds for sexual harassment.
Sexual harassment can be committed by any gender or sexual identity onto any gender or sexual identity. It may be committed by any member, at any level of the organization – be it top management or an intern.
Additionally, a ‘non-employee’ of the company can commit sexual harassment, this could include anyone visiting the company such as an investor, agent, vendor, contractor, customer, postman/woman, a courier, or an electrician. Each employee has a right to a sexual harassment free work environment regardless of who commited the harassment.
This confusion and lack of education around what constitutes workplace sexual harassment leads to many incidents going unreported, and conversely, it leads to some cases being dismissed by the courts because they do not qualify as sexual harassment.
To makes things a little clearer, below is an extensive list of behaviours which are considered sexual harassment.
Please note that while some of these behaviours may seem potentially ‘innocent’ or ‘harmless’, in order for these behaviours to be considered sexual harassment they must be unwanted, unwelcome, and make an employee of the company feel significantly uncomfortable, offended, distressed, and/or intimidated to such an extent that it negatively impacts their ability to do their job and/or creates a hostile, offensive, or intimidating work environment for others.
Complete List of Forms of Sexual Harassment
Sexual harassment in the workplace includes, but is not limited to:
Actual or threatened physical sexual assault or rape.
Directly asking for, putting pressure on someone for, offering benefits for, or implicitly soliciting, sexual favours.
Sexual favoritism, e.g. if employee submits to sexual conduct and is given a work benefit while a person who did not submit to sexual conduct did not, this would imply to similar employees that submission to sexual conduct is a prerequisite for certain job benefits.
Making or threatening reprisal after rejection of sexual advances or propositions.
Sexualized name-calling, such as referring to a person as: babe, hunk, doll, sexy, gorgeous, sweetheart, etc.
Sexualized comments which refer to a person’s physical appearance, attributes, anatomy or looks; e.g. “Nice ass!”, “You look hot in that dress”, “Great rack!”.
Sexual comments, innuendos, ridicule, mockery, or unwanted teasing; e.g. “I bet that’s what Maria said to you last night”; “I know you like being on top.”
Obscene slurs, epithets or name-calling; e.g. “That bitches mood goes up and down like a whore’s knickers!”
Sexually-toned noises; e.g. catcalling, wolf-whistling, swit-swoo-ing, kissing sounds, howling, smacking lips.
Telling sexual jokes or stories, e.g. “What did the priest say to the hooker?”; “One time I was at this party and I hooked up with these hot twins”.
Asking about sexual fantasies, preferences, history, or sex life, e.g. “Have you ever been with a man?”.
Rating or evaluating others as to sexual activity or performance, e.g. “I bet you’re a devil in the sack.”
Talking about one’s sexual activity in front of others, e.g. “You should have seen this chick I banged last night.”
Repeatedly asking someone on a date when they are not interested; e.g. “Oh come on, go out with me on Friday night, just for one drink.”
Telling lies or spreading rumours about a person’s personal sex life; e.g. “That’s Tom over there, he’s slept with half the office”.
Non-verbal actions that may be construed as sexual (even if they are not intended to be) and make someone uncomfortable; e.g. unwanted sexual looks, sexually suggestive gestures or facial expressions, looking someone up and down (‘elevator-eyes’), winking at someone, throwing kisses or licking lips, beckoning with one’s finger, looking at a person’s sexual organs, staring at someone.
Violation of a person’s personal space; e.g. blocking someone’s path, following someone, cornering someone.
Showing someone pornographic or sexualy explicit material.
Displaying sexually suggestive objects or depictions
Posters, signs, calendars, or graffiti that is sexually toned
Giving a person personal gifts that could be construed as sexually-toned or provocative, such as: a pair of tights, underwear, lingerie, and so forth.
Unwanted telephone calls, texts, emails, letters, or other forms of communication that are sexually or romantically-toned.
Giving someone a massage of any kind, including a shoulder rub.
Touching a person’s body, hair, or clothing.
Hugging, patting, stroking, kissing, smacking, slapping, pinching, fondling, or tickling.
Standing unnecessarily close to someone, leaning over them, or brushing up against them
Rubbing or touching one’s sexual organs in a sexual way around another person