Harassment: An Overview of Current Employment Issues and Concerns
©1999 by Claire
Title VII of the Civil Rights Act
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.”
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)
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)
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.
“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.
“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
“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
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
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
“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).
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
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
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
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
3. Make certain effective
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
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
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
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%).