Sexual Harassment

September 26, 2011

The 20th century has seen a drastic increase in the number of women in the workforce. This influx of women into the workforce helps explain an increase of sexual harassment in the workplace. In 2002, there were 14,396 charges of sexual harassment filed with the appropriate state and federal authorities. This is a 37% increase in the amount of complaints filed 10 years ago.

Congress took a major step toward ending sexual harassment in the workplace when it passed the Title VII to the Civil Rights Act of 1964. Under Title VII, it is illegal for an employer to discriminate, on the basis of sex, with respect to compensation, terms, conditions, or privileges of employment. Every state also has promulgated laws prohibiting employers from discriminating on the basis of sex.

There are two basic forms of workplace sexual harassment. The first is known as either quid pro quo or tangible job action harassment. This form of harassment occurs when an employer makes an employment decision based on the employee’s refusal to submit to sexual demands. Such employment decisions include, but are not limited to, denial of a promotion, a demotion, denial of a raise, and dismissal. An employer can be held liable for a tangible job action executed by a supervisor who retains authority over the employee.

The second form of sexual harassment involves the creation of a hostile work environment. Hostile work environment harassment occurs when a workplace is permeated with such severe and pervasive discriminatory intimidation, ridicule, and insult that the conditions of the employee’s working conditions are altered so as to create an abusive working environment. Conduct that has been found to create a hostile work environment includes: sexual teasing, sexual looks or gestures, deliberate touching, pressure for dates or sexual favors, letters, telephone calls, and exposure to materials of a sexual nature. However, for the conduct to be deemed “harassing” in a legal context, the conduct must have been of such a nature that both the employee and a reasonable person would find it unwelcome. Further, the law requires the conduct be so severe and pervasive as to alter the terms, conditions, or privileges of employment. Whether the harassing conduct is severe and pervasive is determined by looking at the severity of the conduct, the frequency of the encounters, the length of time over which the conduct occurs, the context in which the conduct occurs, the interference with the employee’s work performance, and whether the conduct is physically threatening or humiliating.

The law draws a distinction between when a hostile work environment is created by a co-worker rather than a supervisor. When the harassment involves a co-worker, the law requires that the employer knew, or should have known, of the harassment and failed to take corrective action. However, when a supervisor creates the hostile work environment, the law only requires proof that the behavior that occurred was unwelcome, severe, and pervasive. The employer, however, can avoid liability for the supervisor’s creation of a hostile work environment if it can show it exercised reasonable care to prevent, and correct promptly, any sexually harassing behavior, and the employee unreasonably failed to take advantage of the preventive or corrective measures.

Sexual harassment can have various effects on those employees subjected to it. Employees who have been exposed to sexual harassment frequently develop, and suffer from, a lack of self-esteem, irritability, headaches, sleep deprivation, nightmares, gastrointestinal disturbances, isolation, loss of appetite, anger, frustration, guilt, and fear. Those who have been sexually harassed may feel helpless, depressed, fluctuate their weight, or increase their alcohol consumption. The employee’s work performance is often affected by increased absenteeism, poor work performance evaluations, and deficient work performance. Employees who have been forced to endure sexual harassment commonly suffer from diagnoses including: adjustment disorder, major depression, posttraumatic stress syndrome, somatoform disorders, generalized anxiety disorder, and panic anxiety disorder.

Employees who believe they are being sexually harassed have various options available to them. The employee could file a charge with the Equal Employment Opportunity Commission (EEOC). How the EEOC will proceed with the charge depends on whether the state involved is considered a deferral state or a nondeferral state. If the state is a deferral state, the charge must first be examined by the appropriate state agency. The filing process has been made easier by the EEOC, which will forward the charge to a deferral state if the employee selects the appropriate option on the charge form. The matter will be reexamined by the EEOC after the matter has been with the state agency for a specified amount of time. However, if the state is a nondeferral state, the employee can choose whether to apply with the EEOC or with the state agency.

An employee may, without involving the EEOC, also file a charge with the appropriate state agency, bringing the claim solely under the state’s sexual harassment law. This option may be vital to some claims. For example, Illinois’ Human Rights Act, unlike Title VII, allows the employee to sue the individual harasser. This would make it easier for the employee to bring a charge against a co-worker harasser. Further, unlike Title VII, some states allow an individual to bring a claim against an employer who retains under 15 employees.

Finally, the employee, after receiving a right to sue letter from the EEOC, can sue the employer in a court of law. If the employee sues under Title VII, the remedies available to the employee include money to compensate for emotional distress and intangible losses, punitive damages to monetarily punish the employers, attorney fees, payment for loss of wages, and injunctive relief ordering the employer to take a certain action (i.e., grant the denied promotion).

See Also: Discrimination

Suggested Reading

  • Friedman, S. (1990). Sex law: A legal sourcebook on critical sexual issues for the non-lawyer. Jefferson, NC: McFarland.
  • Jorgenson, L., & Wahl, K. (2000). Workplace sexual harassment: Incidence, legal analysis, and the role of the psychiatrist. Harvard Review of Psychiatry, 8, 94—98.
  • Pepper, W., & Kennedy, F. (1981). Sexual harassment in employment. Charlottesville, VA: Michie.
  • Stein, L. (1999). Sexual harassment in America: A documentary history. Westport, CT: Greenwood Press.

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