Sexual harassment

Sex and the law
Atherton, John (1598-1640) & Childe, John (16 -1640) - 1641.jpg
Bishop John Atherton, hanged for Sodomy.
Social Issues
Sex and the law · Age of Consent · Rights
Pornography · Miscegenation · Censorship
Same-sex marriage · Red-light district
Norms · Slavery · Objectification
Antisexualism · Violence · Ethics
Public morality · Homophobia · Essentialism
Specific Offenses
May vary according to Jurisdiction
Sodomy and Buggery · Bestiality · Rape
Statutory rape · Incest · Extreme pornography
Sexual assault · Public indecency · Adultery
Sexual Abuse · Child Sexual Abuse
Sexual harassment · Prostitution and Pimping
Deviant sexual intercourse · Child pornography
Child grooming · Prostitution of children
Portals: Law · Criminal justice

Sexual harassment is unwelcome attention of a sexual nature and is a form of illegal and social harassment. It includes a range of behavior from seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault. (Dziech et al 1990, Boland 2002) Sexual harassment is considered a form of illegal discrimination in many countries, and is a form of abuse (sexual and psychological) and bullying.

The term sexual harassment began coming to public attention in the 1970s, starting at a "Speak Out" in 1975 in Ithaca New York, USA. For many businesses, preventing sexual harassment, and defending its managerial employees from sexual harassment charges, have become key goals of legal decision-making. In contrast, many scholars complain that sexual harassment in education remains a "forgotten secret," with educators and administrators refusing to admit the problem exists in their schools, or accept their legal and ethical responsibilities to deal with it. (Dziech, 1990)

Contents

Statistics

Sexual harassment in the workplace

In her book In Our Time: Memoir of a Revolution (1999), journalist Susan Brownmiller quotes the Cornell activists who in 1975 thought they had coined the term sexual harassment: "Eight of us were sitting in an office ... brainstorming about what we were going to write on posters for our speak-out. We were referring to it as 'sexual intimidation,' 'sexual coercion,' 'sexual exploitation on the job.' None of those names seemed quite right. We wanted something that embraced a whole range of subtle and un-subtle persistent behaviors. Somebody came up with 'harassment.' 'Sexual harassment!' Instantly we agreed. That's what it was." (p. 281). These activists went on to form Working Women's Institute which, along with the Alliance Against Sexual Coercion, founded in 1976 by Freada Klein, Lynn Wehrli, and Elizabeth Cohn-Stuntz, were among the the pioneer organizations to bring sexual harassment to public attention in the late 1970s.

The term sexual harassment was used in 1973 by Dr Mary Rowe in a report to the then President and Chancellor of MIT about various forms of gender issues. (See Saturn's Rings, 1973). Rowe has stated that she believes she was not the first to use the term, since sexual harassment was being discussed in womens groups in Massachusetts in the early 1970s, but that MIT may have been the first or one of the first large organizations to discuss the topic (in the MIT Academic Council), and to develop relevant policies and procedures. MIT at the time also recognized the injuries caused by racial harassment and the harassment of women of color which may be both racial and sexual. The President of MIT also stated that harassment (and favoritism) are antithetical to the mission of a university as well as intolerable for individuals.

Approximately 15,000 sexual harassment cases are brought to the U.S. Equal Employment Opportunity Commission (EEOC) each year. Media and government surveys estimate the percentage of women being sexually harassed in the U.S. workplace at 40 to 60%. The European women's lobby reports that between 40 and 50% of female employees have experienced some form of sexual harassment or unwanted sexual behavior in the workplace.[1] While the majority of sexual harassment complaints come from women, the number of complaints filed by men is rapidly increasing. In FY 2007, 16% of EEOC complaints were filed by men with 11% of claims involving men filing against female supervisors.[2][3][4] A 2006 government study in the United Kingdom revealed that 2 out of 5 sexual harassment victims are male, with 8% percent of all sexual harassment complaints to the Equal Opportunities Commission (Britain's EEOC), coming from men.[5] A 2007 study in Hong Kong reported that one third of sexual harassment victims are males being targeted by female supervisors.[6] 'It affects both women and men, causing stress, health problems and financial penalties when they leave their jobs to avoid it,' said Jenny Watson, chair of the EOC.[5]

Sexual harassment in education

Main article: Sexual harassment in education

A 2002 study of students in the 8th through the 11th grade by the American Association of University Women (AAUW) revealed that 83% of girls have been sexually harassed, and 78% of boys have been sexually harassed. The American Association of College Women states that sexual harassment starts as early as preschool.[7] In their 2006 study on sexual harassment at colleges and universities, the AAUW reported that 62% of female college students and 61% of male college students report having been sexually harassed at their university, with 80% of the reported harassment being peer-to-peer. 51% of male college students admit to sexually harassing someone in college, with 22% admitting to harassing someone often or occasionally. 31% percent of female college students admitted to harassing someone in college.[8] In a 2000 national survey conducted for the AAUW, it was reported that roughly 290,000 students experienced some sort of physical sexual abuse or harassment by a public school employee, such as a teacher or coach, between 1991 and 2000. In a major 2004 study commissioned by the U.S. Department of Education, nearly 10 percent of U.S. public school students were shown to have been targeted with unwanted sexual attention by school employees.[9] In their 2002 study, the AAUW reported that 38% percent of the students were sexually harassed by teachers or school employees.

However, it is important to acknowledge that statistics do not give a complete picture of the pervasiveness of the problem as most sexual harassment situations go unreported. (Boland 2002, Dzeich 1990)

Range of behavior and circumstances

Varied circumstances

Sexual harassment can occur in a variety of circumstances. Often, but not always, the harasser is in a position of power or authority over the victim (due to differences in age, or social, political, educational or employment relationships). Forms of harassment relationships include:

(Adapted from the U.S. Equal Employment Opportunity Commission)[3]

Varied behaviors

One of the difficulties in understanding sexual harassment is that it involves a range of behavior, and is often difficult for the recipient to describe to themselves, and to others, exactly what they are experiencing. Moreover, behavior and motives vary between individual harassers.

Behavioral classes

Dzeich 4 (Dzeich et al 1990) has divided harassers into two broad classes: public and private. Public harassers are flagrant in their seductive or sexist attitudes towards colleagues, subordinates, students, etc. Private harassers carefully cultivate a restrained and respectable image on the surface, but when alone with their target, their demeanor changes completely.

Langelan describes three different classes of harassers. First there is the predatory harasser who gets sexual thrills from humiliating others. This harasser may become involved in sexual extortion, and may frequently harass just to see how targets respond--those who don't resist may even become targets for rape. Next, there is the dominance harasser, the most common type, who engages in harassing behaviour as an ego boost. Third are strategic or territorial harassers, who seek to maintain privilege in jobs or physical locations, for example a man's harassing female employees in a predominantly male occupation. (Langelan, 1993)

Attorney Mary Jo McGrath describes "The Winner" as a common profile that confuses harassment victims and others in the community because they do not seem like the type who would need to abuse anyone. An adult male harasser is often middle aged, married with children, a churchgoer, and someone who is highly respected in the community. A teacher who sexually harasses students may have been named "Teacher of the Year" or be Chair of their department. A young harasser may be captain of the football team, an honor student sure to attend an Ivy League school, or some other young person who thinks he or she has everything going for him or her (and so does everyone else). McGrath writes that sexual harassment and abuse "are acts of violence and domination, not sensuality and flirtation. These acts are calculated to dominate and control, not enhance the enjoyment and safety of the targeted person ... The violator may be very high functioning in all other areas of his or her life, but is driven within this realm to act out needs inappropriately."[10]

Brian Martin, an Australian associate professor of Science, Technology and Society writes "Most harassers don't try to justify their behaviour; they don't think about it. If asked, they may say they are just having fun and don't cause any harm. A few, though, consciously seek to humiliate their victims."[11]

Types of harassment

The list below is based on categories defined by Dzeich (Dzeich et al,1990) and Truida Prekel, a South African management consultant.[12] There is usually more than one type of harassing behavior present (Boland 2002), so a single harasser will often fit more than one category. These are brief summations of each type. For a more in-depth discussion on patterns and types of harassment, see Sexual Harassers (Please note, these are not "legal" definitions; burdens of proof must comply with the guidelines described by the government.)

Power-player Legally termed "quid pro quo" harassment, these harassers insist on sexual favors in exchange for benefits they can dispense because of their positions in hierarchies: getting or keeping a job, favorable grades, recommendations, credentials, projects, promotion, orders, and other types of opportunities.

Mother/Father Figure (a.k.a. The Counselor-Helper) These harassers will try to create mentor-like relationships with their targets, all the while masking their sexual intentions with pretenses towards personal, professional, or academic attention. This is a common method of teachers who sexually harass students. (For an example, see Naomi Wolf's article, The Silent Treatment.)

One-of-the-Gang Often motivated by bravado or competition, or because the harasser(s) think it is funny (AAUW 2006), One-of-the-gang harassment occurs when groups of men or women embarrass others with lewd comments, physical evaluations, or other unwanted sexual attention. Harassers may act individually in order to belong or impress the others, or groups may gang up on a particular target. An extreme example is Tailhook '91 during which participants sexually abused seven men and 83 women as part of a three-day aviator convention.[13]

Third Party sexual harassment describes sexual harassment of employees or peers who are not themselves the target of the harassment; this includes groping. Third-party sexual harassment may be either quid pro quo or hostile environment.

Serial Harasser Harassers of this type carefully build up an image so that people would find it hard to believe they would do anyone any harm. They plan their approaches carefully, and strike in private so that it is their word against that of their victims.

Groper Whenever the opportunity presents itself, these harassers' eyes and hands begin to wander--in the elevator, when working late, at the office or department party. They like to insist on (usually begrudged) kisses or hugs and sometimes grabs the buttocks or the woman's breasts or the man's penis. Called chikan when perpetrated by a male and chijo when perpetrated by a female in Japan, the problem is so pervasive there that men are increasingly being banned altogether from stores, restaurants, hotels, spas and even entertainment outlets, and women-only train cars have been created.[14][15]

Opportunist Opportunist use physical settings and circumstances, or infrequently occurring opportunities, to mask premeditated or intentional sexual behavior towards targets. This will often involve changing the environment in order to minimize inhibitory effects of the workplace or school (e.g private meetings, one-on-one "instruction," field trips, conferences)

Bully In this case, sexual harassment is used to punish the victim for some transgression, such as rejection of the harasser's interest or advances, or making the harasser feel insecure about himself or herself or his or her abilities. The bully uses sexual harassment to put the victim in his or her "proper place."

Confidante Harassers of this type approach subordinates, or students, as equals or friends, sharing about their own life experiences and difficulties, sharing stories to win admiration and sympathy, and inviting subordinates to share theirs so as to make them feel valued and trusted. Soon these relationships move into an intimate domain.

Situational Harasser Harassing behavior begins when the perpetrator endures a traumatic event, or begins to experience very stressful life situations, such as psychological or medical problems, marital problems, or divorce. The harassment will usually stop if the situation changes or the pressures are removed.

Pest This is the stereotypical "won't take 'no' for an answer" harasser who persists in hounding a target for attention and dates even after persistent rejections. This behavior is usually misguided, with no malicious intent.

Great Gallant This mostly verbal harassment involves excessive compliments and personal comments that focus on appearance and gender, and are out of place or embarrassing to the recipient. Such comments are sometimes accompanied by leering looks. The "wolf whistles" of a street harasser are one example of this.

Intellectual Seducer Most often found in educational settings, these harassers will try to use their knowledge and skills as an avenue to gain access to students, or information about students, for sexual purposes. They may require students participate in exercises or "studies" that reveal information about their sexual experiences, preferences, and habits. They may use their skills, knowledge, and course content to impress students as an avenue to harassing or seducing a student.

Incompetent These are socially inept individuals who desire the attentions of their targets, who do not reciprocate these feelings. They may display a sense of entitlement, believing their targets should feel flattered by their attentions. When rejected, this type of harasser may use bullying methods as a form of revenge.

Unintentional Acts or comments of a sexual nature, not intended to harass, but is perceived by the "harrasee" as such. Talking about sex when a person feels uncomfortable about it may be called sexual harassment.

Stalking can also be a method of sexual harassment.

Sexualized environments (aka environmental harassment)

Sexualized environments are environments where obscenities, sexual joking, sexually explicit graffiti, viewing Internet pornography, sexually degrading posters and objects, etc., are common. None of these behaviors or objects may necessarily be directed at anyone in particular. However, they can create an offensive environment, and one that is consistent with "hostile environment sexual harassment." For example, in the case of Morse v. Future Reality Ltd. in the United Kingdom(1996), the female complainant was awarded compensation after her superiors ignored her complaint that her office mates spent much time studying sexually explicit images downloaded from the Internet, and creating a "general atmosphere of obscenity" in the office. EOC: Sexual Harassment: case decisions Sexualized environments have also been shown to create atmospheres that encourage more serious and direct sexual harassment. For example, when obscenities are common in the workplace, women are three times more likely to be treated as sex objects, and be directly sexually harassed than in environments where profanity is not tolerated. And when sexual joking is common, sexual harassment is three to seven times more likely. (Boland, 2002)

Rituals and initiations

Sexual harassment can also occur in group settings as part of rituals or ceremonies, such as when members engage newcomers in abusive or sexually explicit rites as part of hazing or initiation. While such traditions have historically remained in arenas of male bonding or female bonding, such as team sports, fraternities, and sororities, it is becoming increasingly common for girls/women's groups to engage in similar ceremonies.[16] For example, as women's sports become more widespread, some have begun to mimic the hazing and other practices characteristic of traditional men's sports in order to try to be accepted by men in sport.[17] And stories of sexual abuse and harassment in sorority initiations are also appearing more and more frequently in the popular media. [18] While some suggest such activities are just "a joke"; others consider it degrading, insulting and even threatening—especially for many young people who have experienced sexual harassment, sexual abuse, stalking or rape. Young people who lack confidence, or who are confused about their identity, may fall victim to such practices more easily than those who are self-assured.[16]

Retaliation and backlash

Retaliation and backlash against a victim are very common, particularly a complainant. Victims who speak out against sexual harassment are often labeled troublemakers who are on their own power trips, or who are looking for attention. Similar to cases of rape or sexual assault, the victim often becomes the accused, with their appearance, private life, and character likely to fall under intrusive scrutiny and attack. [19] They risk hostility and isolation from colleagues, supervisors, teachers, fellow students, and even friends. They may become the targets of mobbing or relational aggression.[20]

Women are not necessarily sympathetic to female complainants who have been sexually harassed. If the harasser was male, internalized sexism, and/or jealousy over the sexual attention towards the victim, may encourage some women to react with as much hostility towards the complainant as some male colleagues.[21] Fear of being targeted for harassment or retaliation themselves may also cause some women to respond with hostility.[22] For example, when Lois Jenson filed her lawsuit against Eveleth Taconite Co., the women placed a hangman's noose above her workplace, and shunned her both at work and in the community--many of these women later joined her suit.(Bingham et al 2002) Women may even project hostility onto the victim in order to bond with their male coworkers and build trust.[22]

Retaliation has occurred when a sexual harassment victim suffers a negative action as a result of the harassment. For example, a complainant be given poor evaluations or low grades, have their projects sabotaged, be denied work or academic opportunities, have their work hours cut back, and other actions against them which undermine their productivity, or their ability to advance at work or school. They may be suspended, asked to resign, or be fired from their jobs altogether. Moreover, a professor or employer accused of sexual harassment, or who is the colleague of a perpetrator, can use their power to see that a victim is never hired again, or never accepted to another school. Retaliation can even involve further sexual harassment, and also stalking and cyberstalking of the victim. [22][21]

Of the women who have approached her to share their own experiences of being sexually harassed by their teachers, feminist and writer Naomi Wolf writes,

"I am ashamed of what I tell them: that they should indeed worry about making an accusation because what they fear is likely to come true. Not one of the women I have heard from had an outcome that was not worse for her than silence. One, I recall, was drummed out of the school by peer pressure. Many faced bureaucratic stonewalling. Some women said they lost their academic status as golden girls overnight; grants dried up, letters of recommendation were no longer forthcoming. No one was met with a coherent process that was not weighted against them. Usually, the key decision-makers in the college or university—especially if it was a private university—joined forces to, in effect, collude with the faculty member accused; to protect not him necessarily but the reputation of the university, and to keep information from surfacing in a way that could protect other women. The goal seemed to be not to provide a balanced forum, but damage control."[23]

Another woman who was interviewed by Helen Watson, a sociologist, reported that, "Facing up to the crime and having to deal with it in public is probably worse than suffering in silence. I found it to be a lot worse than the harassment itself." (Watson, 1994)

Effects of sexual harassment and the (often) accompanying retaliation:

Effects of sexual harassment can vary depending on the individual, and the severity and duration of the harassment. Often, sexual harassment incidents fall into the category of the "merely annoying." However, many situations can, and do, have life-altering effects particularly when they involve severe/chronic abuses, and/or retaliation against a victim who does not submit to the harassment, or who complains about it openly. Indeed, psychologists and social workers report that severe/chronic sexual harassment can have the same psychological effects as rape or sexual assault. (Koss, 1987) For example, in 1995, Judith Coflin committed suicide after chronic sexual harassment by her bosses and coworkers. (Her family was later awarded 6 million dollars in punitive and compensatory damages.) Backlash and victim-blaming can further aggravate the effects. Moreover, every year, sexual harassment costs hundreds of millions of dollars in lost educational and professional opportunities, mostly for girls and women. (Boland, 2002)

Common effects on the victims

Common professional, academic, financial, and social effects of sexual harassment:

Some of the psychological and health effects that can occur in someone who has been sexually harassed: depression, anxiety and/or panic attacks, sleeplessness and/or nightmares, shame and guilt, difficulty concentrating, headaches, fatigue or loss of motivation, stomach problems, eating disorders (weight loss or gain), alcoholism, feeling betrayed and/or violated, feeling angry or violent towards the perpetrator, feeling powerless or out of control, increased blood pressure, loss of confidence and self esteem, withdrawal and isolation, overall loss of trust in people, traumatic stress, post-traumatic stress disorder (PTSD), complex post-traumatic stress disorder, suicidal thoughts or attempts, suicide.[20][24][25][26][27]

Effects of sexual harassment on organizations

Evolution of sexual harassment law

United States

Workplace

In the US, the Civil Rights Act of 1964 Title VII prohibits employment discrimination based on race, sex, color, national origin or religion. 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 barring many more persons of one sex than the other from the job (such as height and weight limits).

Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used.[31] In 1976, Williams v. Saxbe established sexual harassment as a form of sex discrimination when sexual advances by a male supervisor towards a female employee, if proven, would be deemed an artificial barrier to employment placed before one gender and not another. 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. 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." 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, and 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. 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, this case would establish new precedents for setting limits on the "discovery" process in sexual harassment cases, and allowing psychological injuries from the litigation process to be included in assessing damages awards. 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. 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.

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.

Education

Title IX of the Education Amendments of 1972 (United States) states "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

In Franklin v. Gwinnett County Public Schools (1992), the U.S. Supreme Court held that private citizens could collect damage awards when teachers sexually harassed their students. In Bethel School District No. 403 v. Fraser (1986) the courts ruled that schools have the power to discipline students if they use "obscene, profane language or gestures" which could be viewed as substantially interfering with the educational process, and inconsistent with the "fundamental values of public school education." Under regulations issued in 1997 by the U.S. Department of Education, which administers Title IX, school districts should be held responsible for harassment by educators if the harasser "was aided in carrying out the sexual harassment of students by his or her position of authority with the institution."[32] In Davis v. Monroe County Board of Education, and Murrell v. School Dist. No. 1, 1999, schools were assigned liability for peer-to-peer sexual harassment if the plaintiff sufficiently demonstrated that the administration's response shows "deliberate indifference" to "actual knowledge" of discrimination.

Evolution of sexual harassment law in other jurisdictions

In India, the case of Vishaka Vs. State of Rajasthan in 1997 has been credited with establishing sexual harassment as illegal.[33] In Israel, the 1988 Equal Employment Opportunity Law made it a crime for an employer to retaliate against an employee who had rejected sexual advances, but it wasn't until 1998 that the Israeli Sexual Harassment Law made such behavior illegal. (Kamir, 2005)

In May 2002, the European Union Council and Parliament amended a 1976 Council Directive on the equal treatment of men and women in employment to prohibit sexual harassment in the workplace, naming it a form of sex discrimination and violation of dignity. This Directive required all Member States of the European Union to adopt laws on sexual harassment, or amend existing laws to comply with the Directive by October 2005. [34]

In 2005, China added new provisions to the Law on Women's Right Protection to include sexual harassment.[35] In 2006 "The Shanghai Supplement" was drafted to help further define sexual harassment in China. [36]

Varied legal guidelines and definitions

The United Nations General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women defines sexual harassment of women to include:

"such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment."

While such conduct can be harassment of women by men, many laws around the world which prohibit sexual harassment are more enlightened and recognize that both men and women may be harassers or victims of sexual harassment. It is important to note, most claims of sexual harassment are made by women.

United States

There are a number of legal options for a complainant in the U.S.: mediation, filing with the EEOC or filing a claim under a state Fair Employment Practices (FEP) statute (both are for workplace sexual harassment), filing a common law tort, etc.[37] Not all sexual harassment will be considered severe enough to form the basis for a legal claim. However, most often there are several types of harassing behaviors present, and there is no minimum level for harassing conduct under the law.(Boland, 2002) Many experienced sexual harassment than have a solid legal case against the accused. Because of this, and the common preference for settling, few cases ever make it to federal court.[37] The section below describes the legal definitions that have been created for sexual harassment in the workplace. Similar definitions have been created for academic environments in the U.S. Department of Education Sexual Harassment Guidance.

New Jersey

The New Jersey Law Against Discrimination (LAD) was initially enacted in 1945. The LAD prohibits sexual harassment. Under the LAD, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. There are generally two types of sexual harassment. Quid pro quo harassment occurs when an employer, or an employer's agent, implicitly or explicitly attempts to make submission to sexual demands a condition of employment. Thus, an employee may perceive that he or she must tolerate sexual advances or engage in a sexual relationship in order to continue employment, to achieve advancement, or to avoid adverse employment consequences such as poor evaluations or demotions. Similarly, it is unlawful for an employer or an employer's agent to condition favorable treatment such as promotions, salary increases, or preferred assignments, on an employee's acceptance of sexual advances or relations. Castronovo & McKinney, LLC can provide additional information regarding sexual harassment by an employer.

EEOC definition

In 1980 the Equal Employment Opportunity Commission produced a set of guidelines for defining and enforcing Title VII (in 1984 it was expanded to include educational institutions). The EEOC defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual's employment,

2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or

3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

1. and 2. are called "quid pro quo" (Latin for "this for that" or "something for something"). They are essentially "sexual bribery", or promising of benefits, and "sexual coercion".

Type 3. known as "hostile work environment," is by far the most common form. This form is less clear cut and is more subjective.[21]

Note: a workplace harassment complainant must file with the EEOC and receive a "right to sue" clearance, before they can file a lawsuit against a company in federal court. (Boland, 2002)

Quid pro quo sexual harassment

In the workplace, this occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. For example, a supervisor promises an employee a raise if he or she will go out on a date with him or her, or tells an employee he or she will be fired if he or she doesn't sleep with him or her.[38] Quid pro quo harassment also occurs when an employee makes an evaluative decision, or provides or withholds professional opportunities based on another employee's submission to verbal, nonverbal or physical conduct of a sexual nature.  Quid pro quo harassment is equally unlawful whether the victim resists and suffers the threatened harm or submits and thus avoids the threatened harm.[39]

Hostile environment sexual harassment

This occurs when an employee is subjected to comments of a sexual nature, unwelcome physical contact, or offensive sexual materials as a regular part of the work environment. For the most part, a single isolated incident will not be enough to prove hostile environment harassment unless it involves extremely outrageous and egregious conduct. The courts will try to decide whether the conduct is both "serious" and "frequent." Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment.[40] Probably the most famous hostile environment sexual harassment case to date is Jenson v. Eveleth Taconite Co. which inspired the movie North Country. (See Hostile environment sexual harassment)

The line between "quid pro quo" and "hostile environment" harassment is not always clear and the two forms of harassment often occur together. For example, an employee's job conditions are affected when a sexually hostile work environment results in a constructive discharge. At the same time, a supervisor who makes sexual advances toward a subordinate employee may communicate an implicit threat to retaliate against her if she does not comply.[41]

"Hostile environment" harassment may acquire characteristics of "quid pro quo" harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Under these circumstances it would be appropriate to conclude that both harassment and retaliation in violation of section 704(a) of Title VII have occurred."

Retaliation

Retaliation has occurred when an employee suffers a negative action after he or she has made a report of sexual harassment, file a grievance, assist someone else with a complaint, or participate in discrimination prevention activities. Negative actions can include being fired, demotion, suspension, denial of promotion, poor evaluation, unfavorable job re-assignment--any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination. (See Burlington Northern & Santa Fe Railway Co. v. White) Retaliation is as illegal as the sexual harassment itself, but also as difficult to prove. Also, retaliation is illegal even if the original charge of sexual harassment was not proven.

Other jurisdictions

Many jurisdictions outside the United States have adopted their own definitions of sexual harassment, intended to cover essentially the same forms of undesirable conduct. However, if a country has officially outlawed sexual harassment, most define the behavior similarly to that of the U.S., some examples below:

Debates

Though the phrase "sexual harassment" is generally acknowledged to include clearly damaging and morally deplorable behavior, its boundaries can be broad and controversial. Accordingly, misunderstandings can abound. Moreover, sexual harassment law has been highly criticized by experts, such as Alan Dershowitz and Eugene Volokh, for imposing on the right to free speech.[50] Some feminist groups criticize sexual harassment policy as helping maintain archaic stereotypes of women as "delicate, asexual creatures" who require special protection.[51] Camille Paglia, for example says that young girls can end up acting in such ways as to make sexual harassment easier, such that for example, by acting "nice" they can become a target. Paglia commented in an interview with Playboy, "Realize the degree to which your niceness may invoke people to say lewd and pornographic things to you--sometimes to violate your niceness. The more you blush, the more people want to do it."[52]

Sexual harassment policy and legislation have been criticized as attempts to "regulate romance" which goes against human urges.[53] Other critics assert that sexual harassment is a very serious problem, but current views focus too heavily on sexuality rather than on the type of conduct that undermines the ability of women or men to work together effectively. Viki Shultz, a law professor at Yale University comments, "Many of the most prevalent forms of harassment are designed to maintain work-particularly the more highly rewarded lines of work-as bastions of male competence and authority."[54] Feminist Jane Gallop sees this evolution of the definition of sexual harassment as coming from a "split" between what she calls "power feminists" who are pro-sex (like herself) and what she calls "victim feminists," who are not. She argues that the split has helped lead to a perversion of the definition of sexual harassment, which used to be about sexism but has come to be about anything that's sexual. (Gallop, 1997)

There is also concern over abuses of sexual harassment policy, and employers and administrators using accusations as a way of expelling employees they want to eliminate for other reasons. (Westhues, 1998).

There is also discussion of whether some recent trends towards more revealing clothing and permissive habits have created a more sexualized general environment, in which some forms of communication are unfairly labeled harassment, but are simply a reaction to greater sexualization in everyday environments. [55]

There are many debates about how organizations should deal with sexual harassment. Some observers feel strongly that organizations should be held to a zero tolerance standard of "Must report - must investigate - must punish."

Others write that those who feel harassed should in most circumstances have a choice of options. See "Workplace Justice, Zero Tolerance, and Zero Barriers," 2001, by Mary Rowe and Corinne Bendersky, in Negotiations and Change, From the Workplace to Society, Thomas Kochan and Richard Locke (editors), Cornell University Press, 2002; Mary Rowe in "Dealing with Harassment: A Systems Approach," in Sexual Harassment: Perspectives, Frontiers, and Response Strategies, Women & Work, Vol. 5, Margaret Stockdale, editor, Sage Publications, 1996, pp. 241-271; Mary Rowe, "People Who Feel Harassed Need a Complaint System with both Formal and Informal Options," in Negotiation Journal, April, 1990, Vol. 6, No. 2, pp. 161-172; Mary Rowe, "Dealing with Harassment: A Systems Approach," in Sexual Harassment: Perspectives, Frontiers, and Response Strategies, Women & Work, Vol. 5, Margaret Stockdale, editor, Sage Publications, 1996, pp. 241-271. Sexual harassment, by definition, is unwanted and not to be tolerated but there often are a number of effective ways for offended and injured people to deal with harassment.

References

For further reading

See also: SIECUS annotated bibliography of books on sexual harassment and sexual violence

Sexual harassment in media and literature

See also

Notes

  1. ↑ Facts and Figures about gender equality in Europe
  2. ↑ More men say they are sexually harassed at work
  3. ↑ 3.0 3.1 US EEOC: Sexual Harassment
  4. ↑ Sexual Harassment Charges
  5. ↑ 5.0 5.1 Sexual harassment of men revealed
  6. ↑ Daily India Sexual Harassment
  7. ↑ Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School AAUW: 2001
  8. ↑ Drawing the Line: Sexual Harassment on Campus AAUW 2002, 2006
  9. ↑ What's behind today's epidemic of teacher-student sex?
  10. ↑ The Early Warning Signs of Sexual Harassment and Abuse In School
  11. ↑ Sexual Harassment and Nonviolent Action
  12. ↑ Sexual Harassment: Causes, Consequences and Cures
  13. ↑ PBS Frontline: the navy blues: Tailhook '91
  14. ↑ Japan Tries Women-Only Train Cars to Stop Groping
  15. ↑ 'Women only' signs make Japan's men fume
  16. ↑ 16.0 16.1 Why is Hazing a Problem?
  17. ↑ WomenSport International: Position Statement
  18. ↑ 20/20's Report on Sorority Hazing May 3, 1999
  19. ↑ Sexual harassment too often leads to humiliation for victims
  20. ↑ 20.0 20.1 Effects of Sexual Harassment
  21. ↑ 21.0 21.1 21.2 Dealing With Sexual Harassment
  22. ↑ 22.0 22.1 22.2 Sexual harassment retaliation, backlash, and victim blaming
  23. ↑ The Silent Treatment
  24. ↑ Common Effects of Sexual Harassment
  25. ↑ Sexual Harassment: Myths and Realities
  26. ↑ 26.0 26.1 StopVAW: Effects of Sexual Harassment
  27. ↑ 27.0 27.1 Psychosocial and Organizational Factors: Sexual Harassment
  28. ↑ Sexual harassment bad for victims and for business June 22, 2005
  29. ↑ Sexual harassment: Poisoning profit prospects August 10, 2005
  30. ↑ For Help with the Handling of Harassment
  31. ↑ The Sad Evolution of Sexual Harassment October 27, 2004
  32. ↑ Sexual Harassment Guidance
  33. ↑ 33.0 33.1 Sexual Harassment and Rape Laws in India
  34. ↑ Domestic Legal Framework November 1, 2003
  35. ↑ China to outlaw sexual harassment
  36. ↑ China Daily
  37. ↑ 37.0 37.1 What to Do if You or Someone You Know is Sexually Harassed
  38. ↑ The Law & Your Job: What is quid pro quo harassment?
  39. ↑ Sexual Harassment In The Workplace
  40. ↑ The Law & Your Job: What is hostile environment harassment?
  41. ↑ Policy Guidance on Current Issues of Sexual Harassment 03/19/90
  42. ↑ 42.0 42.1 Employment Law in Each Country
  43. ↑ Denmark Law
  44. ↑ Sexual Harassment in the Workplace in France and in the United States Spring 1997
  45. ↑ AASHA - (Pakistan) Alliance Against Sexual Harassment
  46. ↑ Full text of the Philippine Anti Sexual Harassment Law
  47. ↑ Sexual Harassment in Russian Workplaces - Sexual Harassment Support Forum
  48. ↑ Strathclyde Regional Council v Porcelli [1986 IRLR 134 Court of Session]
  49. ↑ Sexual Harassment: what the law says
  50. ↑ Freedom of Speech vs. Workplace Harassment Law
  51. ↑ Feminism and Free Speech
  52. ↑ Playboy interview, Camille Paglia May 1995
  53. ↑ Sexual Harassment: The employer's role in prevention
  54. ↑ Love, Lust, and the Law Sexual Harassment in the Academy
  55. ↑ 'Save the males': Ho culture lights fuses, but confuses, By KATHLEEN PARKER, NY Daily News, June 30th 2008. Based on "Save the Males" by Kathleen Parker, Copyright 2008, Random House, an imprint of Random House Publishing Group.

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