Sexual Harassment
From Encyclopedia of Sex and Sexuality
Sexual harassment is illegal under Title VII of the American Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. While it is possible for both men and women to be victims of sexual harassment, the vast majority of cases involve female victims. The United States Supreme Court has defined two types of sexual harassment: Quid pro quo and “hostile environment.”
Quid pro quo sexual harassment occurs when a job privilege or promotion is conditioned upon sexual conduct. The prototypical example of quid pro quo harassment is a male boss telling a woman employee “if you sleep with me, you’ll be promoted; if you don’t, you’ll be fired.”
Two factors are necessary to prove quid pro quo harassment: the existence of an actual threat, and proof that the victim’s reaction to the threat, rather than some other factor, resulted in firing or demotion. These elements are often quite difficult to prove because threats usually occur when two people are alone, so it becomes a question of the employee’s word against the employer’s. Also, because very few employees are perfect, an employer can almost always find or construct a legitimate reason to fire someone.
The more difficult case is sexual harassment grounded in a workplace environment. This type of case was only recognized by the Supreme Court in 1986. Hostile environment harassment occurs when conditions at work render it uncomfortable for a person to do her job. For instance, if male employees make sexist remarks, if they refer to women in derogatory ways, or if they are given privileges that female employees at an equal level do not share, this constitutes hostile environment harassment.
A court must look into the entire context of the working environment to determine whether it is in fact “hostile.” In Harris v. Forklift Systems (1993) the Supreme Court listed the following factors to consider in that evaluation: the frequency and severity of the discriminatory conduct; the type of conduct at issue (whether it was physically threatening, humiliating, or merely offensive); and whether a reasonable person would think that the conduct interfered with the employee’s work performance.
The Supreme Court has also ruled that in order to have an actionable claim, a plaintiff (usually a woman suing her employer) need not have suffered serious psychological harm or injury as a result of the harassment. Thus, a woman can sue for sexual harassment even though the uncomfortable situation did not prevent her from adequately doing her job or cause her severe emotional distress.
The key to both types of sexual harassment is the “unwelcomeness” of the sexual attentions. This is problematic for three reasons: it shifts much of the focus to the behavior of the victim, rather than that of the perpetrator; it makes conduct the yardstick with which to measure assent, thus implying that a woman’s polite “no” may not suffice; and since the focus of inquiry is on the plaintiff, the door is open to questions about her conduct, including what she wears, how she talks, and even with whom she sleeps. This is troubling, because it brings back outdated notions of women inviting trouble by the sexual image they may portray, and of them being merely potential sexual objects for men.
Making a case of sexual harassment under federal law is not easy. It is not enough to show that one has been harassed at work. Quid pro quo must be shown, the existence of a pervasively hostile environment must be established, or arguments that employers had cause to fire or not promote the plaintiff must be defeated. To meet these burdens, the woman must first be believed—no easy task when the rules of credibility are stacked against women.
