Sexual harassment in the workplace in the United States

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Sexual harassment in the workplace in US labor law has been considered a form of discrimination on the basis of sex in the United States since the mid-1970s.[1][2] There are two forms of sexual harassment recognized by United States law: quid pro quo sexual harassment (requiring an employee to tolerate sexual harassment to keep their job, receive a tangible benefit, or avoid punishment) and behavior that creates a hostile work environment (persistent sexual behavior that unreasonably interferes with an employee's ability to work). It has been noted that a number of the early sexual harassment cases were brought by African American women and girls.

History[edit]

The term "sexual harassment" was coined and popularized by Lin Farley in 1975, based on a pattern she recognized during a 1974 Cornell University class she taught on women and work.[2] It's been noted that a number of the original sexual harassment cases were on behalf of black women and girls.[3]

United States law recognizes two forms of sexual harassment:[4]

  • Quid pro quo sexual harassment: an employee is required to tolerate sexual harassment in exchange for employment, a raise or job benefit, or promotion.
  • Hostile work environment: sexual harassment in the workplace results in an offensive work environment or unreasonably interferes an employee's work performance.

Civil Rights Act of 1964[edit]

In the US, the Civil Rights Act of 1964 prohibits employment discrimination based on race, sex, color, national origin or religion. Initially only intended to combat sexual harassment of women, (42 U.S.C. § 2000e-2) the prohibition of sex discrimination covers both females and males. This discrimination occurs when the sex of the worker is made as a condition of employment (i.e. all female waitpersons or male carpenters) or where this is a job requirement that does not mention sex but ends up preventing many more persons of one sex than the other from the job (such as height and weight limits). This act only applies to employers with 15 or more employees.[5]

Equal Employment Opportunity Commission regulations (1980)[edit]

In 1980, the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by the Civil Rights Act of 1964.

Civil Rights Act of 1991[edit]

The Civil Rights Act of 1991 added provisions to Title VII protections including expanding the rights of women to sue and collect compensatory and punitive damages for sexual discrimination or harassment

Case Law[edit]

Barnes v Train (1974)[edit]

Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used.[6][3] Paulette Barnes, an African American woman, was a payroll clerk who worked for the Environmental Protection Agency. She brought the case after losing her job for refusing the advances of a male supervisor.[3][7] The case was dismissed, but was appealed in Barnes v Costle (1977).[3]

Williams v. Saxbe (1976)[edit]

In 1976, Williams v. Saxbe was the first case in a U.S. District Court to establish that quid pro quo sexual harassment constitutes sex discrimination under the Civil Rights Act of 1964. A male supervisor was found to have retaliated against Diane R. Williams by firing her after she refused to have sex with him. The court found that it was form of sex discrimination when a condition of employment is to submit to the sexual advances of a superior. Additionally, there was evidence that other female employees had been subjected to similar conditions. It was ruled that William B. Saxbe had only required women to submit to his advances, which created an artificial barrier to employment for one gender but not the other.[8][9]

Williams v Saxbe established a clear-cut type of sexual harassment, quid pro quo, and was the first to establish it in a U.S. District Court. In response to the findings of this case, several earlier decisions against sex discrimination in lower courts were reversed on appeal, including Barnes v Train. [3]

Barnes v. Costle (1977)[edit]

Although Barnes v. Train (1974) was initially dismissed, Paulette Barnes won on appeal in Barnes v. Costle (1977). During this case, the District of Columbia Court of Appeals ruled it was sex discrimination for a woman to suffer tangible employment losses (for example losing her job) for refusing to submit to requests for sexual favors. The appeals ruling was based in part on the Williams v. Saxbe (1976) decision.[10] The court also found that companies are liable for not stopping sexual harassment if they know it is being conducted by supervisors.[10] As part of the ruling of Barnes v. Costle, Barnes received around $18,000 for back pay and the loss of promotions.[11]

Meritor Savings Bank v. Vinson (1986)[edit]

In the 1986 case of Meritor Savings Bank v. Vinson, the Supreme Court first recognized "sexual harassment" as a violation of Title VII, established the standards for analyzing whether the conduct was welcome and levels of employer liability, and that speech or conduct in itself can create a "hostile environment".[12] This case filed by Mechelle Vinson ruled that the sexual conduct between the subordinate and supervisor could not be deemed voluntary due to the hierarchical relationship between the two positions in the workplace.[13] Following the ruling of Meritor Savings Bank v. Vinson, reported sexual harassment cases grew from 10 cases being registered by the EEOC per year before 1896 to 624 case being reported in the subsequent following year.[13] This number of reported cases to the EEOC rose to 2,217 in 1990 and then 4,626 by 1995.[13]

Ellison v. Brady (1991)[edit]

The case of Ellison v. Brady resulted in rejecting the reasonable person standard in favor of the "reasonable woman standard" which allowed for cases to be analyzed from the perspective of the complainant and not the defendant.[14]

Jenson v. Eveleth Taconite Co. (1991)[edit]

Also in 1991, Jenson v. Eveleth Taconite Co. became the first sexual harassment case to be given class action status paving the way for others.

Seven years later, in 1998, through that same case, new precedents were established that increased the limits on the "discovery" process in sexual harassment cases, that then allowed psychological injuries from the litigation process to be included in assessing damages awards.

Faragher v. City of Boca Raton, Florida, and Burlington v. Ellerth (1998)[edit]

In the same year, the courts concluded in Faragher v. City of Boca Raton, Florida, and Burlington v. Ellerth, that employers are liable for harassment by their employees.[15][16]

Oncale v. Sundowner Offshore Services (1998)[edit]

Moreover, Oncale v. Sundowner Offshore Services set the precedent for same-sex harassment, and sexual harassment without motivation of "sexual desire", stating that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender of either the victim, or the harasser.

Burlington Northern & Santa Fe Railway Co. v. White (2006)[edit]

In the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White, the standard for retaliation against a sexual harassment complainant was revised to include any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination.

Reeves v. C.H. Robinson Worldwide, Inc. (2010)[edit]

The 2010 case, Reeves v. C.H. Robinson Worldwide, Inc. ruled that a hostile work environment can be created in a workplace where sexually explicit language and pornography are present.[17] A hostile workplace may exist based upon the treatment of employees as a group, even if it is not targeted at any particular employee.[18]

Prevalence[edit]

During 2007 alone, the U.S. Equal Employment Opportunity Commission and related state agencies received 12,510 new charges of sexual harassment on the job.[19]

From 2010 through 2016, men made approximately 17% of sexual harassment complaints filed with the EEOC.[20]

In a 2017 MSN poll it was found that 31% of people in the U.S have been sexually harassed in the workplace; 45% of women said they were sexually harassed and 15% percent of men said they were.[21]

Sexual harassment in government[edit]

The California legislature in Sacramento is known to have paid at least $850,000 in sexual harassment settlements in the period 1996-2017, though the New York Times notes often settlements are unknown to the public because of the terms of the settlements themselves.[22] The U.S. Congress paid $17 million between the 1990s and 2017 in settlements for sexual harassment and for discrimination.[23]

See also[edit]

References[edit]

  1. ^ McElroy, Wendy (27 October 2004). "The Sad Evolution of Sexual Harassment". iFeminists.com. Retrieved 15 August 2017. 
  2. ^ a b MacKinnon, Catharine A.; Siegel, Reva I. (2004). Directions in Sexual Harassment Law. Yale University. p. 8. ISBN 0-300-09800-6. 
  3. ^ a b c d e Hoff, Joan (1994-04-01). Law, Gender, and Injustice: A Legal History of U.S. Women. NYU Press. p. 431. ISBN 9780814744864. 
  4. ^ Larson, Aaron (10 January 2017). "Sexual Harassment Law". ExpertLaw. ExpertLaw.com. Retrieved 15 August 2017. 
  5. ^ "Sexual Harassment". EEOC. U.S. Equal Opportunity Commission. Retrieved 15 August 2017. 
  6. ^ "The Sad Evolution of Sexual Harassment". Fox News. 2004-10-27. Retrieved 2018-08-08. 
  7. ^ Peirce, Michelle Ridgeway (1989). "Sexual Harassment and Title VII: A Better Solution". Boston College Law Review, Volume 30, Issue 4, Number 4. 
  8. ^ "Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976)". Justia Law. Retrieved 2018-08-07. 
  9. ^ "How Two Legal Cases Established Sexual Harassment as a Civil Rights Violation". Bloomberg.com. Retrieved 2018-08-07. 
  10. ^ a b Hoff, Joan (1994-04-01). Law, Gender, and Injustice: A Legal History of U.S. Women. NYU Press. pp. 431–432. ISBN 9780814744864. 
  11. ^ "History of Sexual Harassment Laws in the United States". Wenzel Fenton Cabassa, P.A. 2018-01-01. Retrieved 2018-08-09. 
  12. ^ Text of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) is available from:  Findlaw  Justia 
  13. ^ a b c 1946-, Cochran, Augustus B., (2004). Sexual harassment and the law : the Mechelle Vinson case. Lawrence, Kan.: University Press of Kansas. ISBN 0700613234. OCLC 53284947. 
  14. ^ Profio, Debra A. (1992). "Ellison v. Brady: Finally, a Woman's Perspective". UCLA Women's Law Journal. 2 (0): 249. Retrieved 15 August 2017. 
  15. ^ "U.S Supreme Court: Beth Ann Faragher, petitioner v. City of Boca Raton". FindLaw. June 26, 1998. Retrieved 2012-10-07. 
  16. ^ "U.S. Supreme Court: Burlington Industries, Inc. v. Ellerth". FindLaw. June 26, 1998. Retrieved 2012-10-07. 
  17. ^ Conte, Alba (2010). Sexual Harassment in the Workplace (4 ed.). Wolters Kluwer. pp. 3–278. ISBN 9780735597655. 
  18. ^ Hegar, Kathryn W. (2012). Modern Human Relations at Work (11 ed.). Cengage Learning. p. 34. ISBN 0538481064. 
  19. ^ Marshall, David; Andronici, Justine (October 23, 2008). "Sexual Harassment Law: A Brief Introduction for New Practitioners". Katz, Marshall & Banks. Retrieved March 18, 2011. 
  20. ^ "Charges Alleging Sex-Based Harassment (Charges filed with EEOC) FY 2010 - FY 2016". Equal Employment Opportunity Commission. Retrieved 15 August 2017. 
  21. ^ Gillett, Rachel (2017-11-10). "Sexual harassment isn't a Hollywood, tech, or comedy world issue — in fact, it affects everyone". Business Insider. Retrieved 2017-11-23. 
  22. ^ JESS BIDGOOD; MIRIAM JORDAN; ADAM NAGOURNEY (29 October 2017). "Sexual Misconduct in California's Capitol Is Difficult to Escape". The New York Times. Retrieved 30 October 2017. many harassment cases disappear into the court system, where the outcomes are often sealed as women sign nondisclosure agreements. Still, at least $850,000 has been paid out in court settlements 
  23. ^ MJ Lee, Sunlen Serfaty and Juana Summers. "Congress paid out $17 million in settlements. Here's why we know so little about that money". CNN. Retrieved 13 December 2017. one figure has emerged: the total that the Office of Compliance, the office that handles harassment complaints, has paid to victims. On Thursday, the Office of Compliance released additional information indicating that it has paid victims more than $17 million since its creation in the 1990s. That includes all settlements, not just related to sexual harassment, but also discrimination and other cases.