Presentations by Claire Guthrie Gastañaga
 Presentations / Articles / Bibliographies
Sexual Harassment:  An Overview of Current Employment Issues and Concerns
©1999 by Claire Guthrie Gastañaga

Title VII of the Civil Rights Act of 1964

Quid Pro Quo
A victim of quid pro quo sexual harassment must prove that she or he was (1) subjected to unwelcome sexual advances or requests for sexual favors; (2) the harassment was based on sex; and (3) submission to the unwelcome conduct was made either an explicit or implied condition for receiving a job benefit, or a refusal to submit resulted in a tangible job detriment. Meritor Sav. Bank, FSB v. Vinson, 477 U.. 57 (1986).

The Supreme Court has now limited quid pro quo liability to threats that are carried out. Burlington Industries v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257 (1998). This means that quid pro quo liability will not attach until a supervisor actually uses his or her authority to cause a person to suffer a tangible job detriment.

What is a tangible job detriment? The Court said generally: “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” 118 S.Ct. 2257, 2268 (1998). Physical or psychological harm by a co-worker is not a “tangible employment action.” The harm must be inflicted by a supervisor or some other person acting with authority. Future economic injury probably can help establish a “tangible employment action.”

Hostile Environment
A victim of hostile environment sexual harassment must prove that: (1) she or he was subjected to unwelcome harassment, including, verbal or physical conduct of a sexual nature; (2) the harassment was based on sex; (3) the harassment was sufficiently severe or pervasive to alter the terms or conditions of employment; and (4) the employer knew or should have known and failed to take prompt remedial action. Meritor Sav. Bank, FSB v. Vinson, 477 US. 57, at 67,. (1986)

Hostile Environment
The law will be violated when the “workplace is [so] permeated with discriminatory intimidation, ridicule, and insult that it creates an abusive environment.” Harris v. Forklift Systems, Inc., 114 S.Ct. 367, at 370 (1993)

Hostile Environment
The determination is fact-intensive and case-specific, requiring an examination of the totality of the circumstances involved. Certain factors are important to consider: whether the conduct was frequent, severe, or physically threatening or humiliating, or was merely offensive; and whether it unreasonably interfered with its target’s performance on the job. Id. at 371.

Hostile Environment
“The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. Oncale v. Sundowner Offshore Services, Inc., ___ U.S. ___, 118 S.Ct. 998 (1998).

Hostile Environment
“A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Id.

The Supreme Court recently said that courts should “determine whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” The Court also said that “Title VII does not prohibit ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’” “‘[S]imple teasing’ ... offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct. 2275, 2283 (1998)(citing Harris v. Forklift Systems, 510 U.S. 17 (1993). Conduct must be extreme.

Vicarious Liability Under Title VII
“An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the ... victim.” Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct. 2275 (1998).

Affirmative Defense Under Title VII
There are two requirements: (1) the employer used reasonable care to prevent and remedy sexual harassment, and (2) the employee/plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.

What is reasonable care to prevent sexual harassment will vary according to the size of and complexity of the organization. Reasonable care might include training of managers or employees, taking active measures to uncover harassing actions without waiting for a complaint, including prevention of harassment as an important factor in evaluations of supervisors and managers, prompt and effective action on complaints, and any other steps that communicate to managers and employees that the employer treats harassment seriously. In Faragher, the Court said that while small employers may be able to rely on informal measures, an employer with many departments in far-flung locations had to have a formal policy.

Strict Liability Under Title VII
“No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment.” Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct. 2275 (1998) and Burlington Industries v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257 (1998). There must be “a significant change in employment status” shown by plaintiff to establish such vicarious liability. Such a change usually involves an economic benefit rather than less tangible job benefits. See Reinhold v. Virginia, 135 F.3d 920 (4th Cir. 1998), op. withdrawn, substituted op. on rehearing, remanded, 151 F.3d 172 (4th Cir. 1998).

State Law Claims

Harmful or offensive touching of or contact with the victim’s person or anything connected to the person. Gilardi V. Schroeder, 833 F.2d 1226 (7th Cir. 1987); Ecklund v. Fuisz Technology, Ltd., 905 F.Supp. 335 (E.D. Va. 1995).

Act (other than words) that causes the victim to reasonably expect immediate harm of offensive contact. Rogers v. Loews L’Enfant Plaza Hotel, 526 F.Supp. 523 (D.D.C. 1981); Ecklund, supra.

Intentional Infliction of Emotional Distress
Brought on by extreme and outrageous conduct. Clay v. Quartet Manufacturing Company, 644 F.Supp. 56 (N.D.Ill. 1986); Ecklund, supra.

Publication of language (e.g., statements that impute unchastity) damaging to victim’s reputation. Williams v. Garraghty, 249 Va. 224, 455 S.E.2d 209 (1995).

Negligent Hiring and Retention
Knowledge by employer of past offensive behavior. See Paroline v. Unisys, 879 F.2d 100, 107 (4th Cir. 1989) (“An employer’s knowledge that a male worker had previously harassed female employees other than plaintiff will often prove highly relevant in deciding whether the employer should have anticipated that the plaintiff too would become a victim of the male employee’s harassing conduct.”)

Preventive Steps

1. Review your policy.
Is it written in “plain English.” Is it distributed to all new employees and at least annually thereafter? Meet with all employees on a regular basis to go over policies and procedures. Do more than pass out written information or say “read the employee handbook.”

2. Stress that retaliation will not be tolerated.
If an employee has a reasonable fear that retaliation will occur, the employer may not be able to prove one of the elements of the affirmative defense. Remember that retaliation may be the basis of a separate and free-standing legal claim.

3. Make certain effective complaint procedures exist, and be sure they are followed.
The procedure must be capable of resulting in stopping harassment. It should not be one that is controlled by the alleged harasser or requires a victim to complain to an alleged harasser. Written procedures should name the people to contact with a grievance. All complaints should be taken seriously. Consider using a neutral outside party to investigate complaints regarding senior officials or in a small organization. Resolve the complaint promptly. Depending on the gravity of the complaint, allow for some temporary remedy while you conduct an investigation.

4. Use training to prevent problems from occurring.
Help employees understand what behavior causes concern. E-mail is the newest area of potential liability. Sexually stereotyped jokes and insults, demeaning propositions, indecent or vulgar remarks, sexually-oriented posters or cartoons, demands for dates that are viewed as offensive.

IBM Corporation provides a model for preventing discrimination in promotions and other employment actions. Managers are not only trained to avoid discrimination and actions based on racial, sexual or national origin stereotypes; they are evaluated on, and their own compensation and chances of advancement were affected by, their own EEO performance.

5. Look for problems before they surface in a complaint.
Look at the “corporate” culture. Offer opportunities for employees to communicate any concerns about clients, etc.

6. Consider whether you need a policy on consensual relationships in the workplace.
One person’s true love is another person’s harasser. The difference is the answer, not the question. Companies that have policies regarding “romance” in the workplace most often restrict romance between supervisors and subordinates (70%). The reasons given for instituting the policy include: potential for sexual harassment claims (88%); potential for retaliation if the relationship ends (75%); concerns about the morale of co-workers (60%); concerns about lower productivity (46%); and romances at work are unprofessional (38%).

 Presentations / Articles / Bibliographies

Home  l  Services  l  Resources  AboutContact  l
©2000-2004 by Claire Guthrie Gastañaga | copyright policy | legal disclaimer | privacy statement