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.

Contents

History

The term sexual harassment was popularized following a consciousness-raising session led by Lin Farley as part of a Cornell University program on women in the workplace, [3] and the term entered popular use in 1975. [4] [5]

A number of the original sexual harassment cases were pursued on behalf of black women and girls. [6]

United States law recognizes two forms of sexual harassment:

Civil Rights Act of 1964

In the United States, the Civil Rights Act of 1964 prohibits employment discrimination based on race, sex, color, national origin or religion. Initially only intended to combat sex discrimination against people based on sex alone, (42 U.S.C. § 2000e-2) the prohibition of sex discrimination now extends to discrimination based on sexuality and transgender identity. [7] [8] This discrimination occurs when the sex of the worker, the worker's sexual preference, or the worker's sex at birth, is made a condition of employment (e.g., 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. [9]

Equal Employment Opportunity Commission regulations (1980)

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

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

Barnes v Train (1974)

Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used. [10] [6] 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. [6] [11] The case was dismissed, but was appealed in Barnes v Costle (1977). [6]

Williams v. Saxbe (1976)

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. [12] A male supervisor was found to have retaliated against Diane R. Williams, an African American woman, by firing her after she refused to have sex with him. [13] [12] [14] The court found that it was a form of sex discrimination when a condition of employment is to submit to the sexual advances of a superior. [14] [12] Additionally, there was evidence that other female employees had been subjected to similar conditions. [14] Judge Charles Richey ruled that Diane Williams' supervisor, who was an employee under 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. [14] [15] [12]

Judge Richey's decision received a lot of media attention, including stories in multiple national newspapers. [12] A lot of this attention was critical of the decision, and focused on a footnote Judge Richey included in the Memorandum Opinion. [12] This footnote indicated that sexual harassment from a supervisor who is bisexual cannot be considered sex discrimination under Title VII if both male and female employees are subject to the harassment. [12] [14]

Williams' case was appealed multiple times, and it took around eight years for her to win. [16] [13] [12] Judge Richey granted Williams $19,147 to make up for lost pay. [13] [16]

Williams v Saxbe was the first U.S. District Court decision to recognize quid pro quo sexual harassment. [14] [12] 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. [6]

Barnes v. Costle (1977)

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. [17] The court also found that companies are liable for not stopping sexual harassment if they know it is being conducted by supervisors. [17] As part of the ruling of Barnes v. Costle, Barnes received around $18,000 for back pay and the loss of promotions. [18]

Meritor Savings Bank v. Vinson (1986)

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". [19] 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. [20] 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 1986 to 624 case being reported in the subsequent following year. [20] This number of reported cases to the EEOC rose to 2,217 in 1990 and then 4,626 by 1995. [20]

Ellison v. Brady (1991)

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. [21]

Jenson v. Eveleth Taconite Co. (1991)

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)

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. [22] [23] These cases solidified what would later be known as the Faragher-Ellerth affirmative defense, available to employers when the harassed employee suffered no tangible employment action. [24] To avail itself of this defense, the employer must show 1. that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2. the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [25] In 2018 the Third Circuit Court of Appeals narrowed the Faragher-Ellerth defense by holding that harassed employees who neither report the conduct nor suffer an adverse employment action may still potentially prevail in sexual harassment lawsuits. [24] : 559–560 

Oncale v. Sundowner Offshore Services (1998)

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)

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.

Astra USA v. Bildman (2009)

In Astra USA v. Bildman, 914 N.E.2d 36 (Mass. 2009), applying New York's faithless servant doctrine, the court held that a company's employee who had engaged in financial misdeeds and sexual harassment must "forfeit all of his salary and bonuses for the period of disloyalty." [26] The court held that this was the case even if the employee "otherwise performed valuable services," and that the employee was not entitled to recover restitution for the value of those other services. [26] [27]

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

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. [28] A hostile workplace may exist based upon the treatment of employees as a group, even if it is not targeted at any particular employee. [29]

Forced arbitration

In the 2002 EEOC v. Waffle House Inc. United States Supreme Court ruling, it was held that arbitration agreements could not prevent the U.S. Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific relief in litigation on behalf of an employee who files a timely charge of discrimination. [30] In 2022, the U.S. Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which excludes these types of complaints from contracts with forced arbitration clauses, including retroactively. The law was championed by Gretchen Carlson, who also opposes the use of non-disclosure agreements to shield perpetrators. [31] It would be officially signed into law by U.S. President Joe Biden on March 3, 2022. [32]

Prevalence

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. [33]

From 2010 through 2016, men made approximately 17% of sexual harassment complaints filed with the EEOC. [34]

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. [35]

Sexual harassment in government

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. [36] The U.S. Congress paid $17 million between the 1990s and 2017 in settlements for sexual harassment and for discrimination. [37]

Mandatory workplace training

Several States require organizations based in the area to provide mandatory sexual harassment training to their employees.

California

California requires organizations with more than 5 employees to provide a written sexual harassment policy as well as an interactive training (either in-person or online) by January 1, 2021. This is an expansion of a 2005 law that required organizations with more than 50 employees to provide training to supervisors only. All employees and contractors (including temporary and seasonal employees) based in the state must go through the training within six months of hire or promotion and every two years thereafter. [38]

Illinois

All Illinois organizations must provide a policy as well as a sexual harassment prevention training to their employees, starting in 2020. The in-person or online training must be taught every year to each employee. [39]

New York State

New York was the first State to enact laws regarding mandatory annual harassment training in the workplace. [40] The State requires each organization to provide a written policy. It also requires the employer to provide in-person or online interactive training to employees and contractors based in the state. [41] New York City employees have to enroll in the training every year.

Connecticut, Delaware, and Maine have also passed laws mandating sexual harassment training for employers.

See also

Related Research Articles

<i>Quid pro quo</i> Latin phrase meaning "something for something"

Quid pro quo is a Latin phrase used in English to mean an exchange of goods or services, in which one transfer is contingent upon the other; "a favor for a favor". Phrases with similar meanings include: "give and take", "tit for tat", "you scratch my back, and I'll scratch yours", "this for that," and "one hand washes the other". Other languages use other phrases for the same purpose.

In United States labor law, a hostile work environment exists when one's behavior within a workplace creates an environment that is difficult or uncomfortable for another person to work in, due to illegal discrimination. However, a working environment that is unpleasant and frightening for the victim due to sexual advances that have been denied by the victim, is what constitutes hostile work environment sexual harassment. Common complaints in sexual harassment lawsuits include fondling, suggestive remarks, sexually-suggestive photos displayed in the workplace, use of sexual language, or off-color jokes. Small matters, annoyances, and isolated incidents are usually not considered to be statutory violations of the discrimination laws. For a violation to impose liability, the conduct must create a work environment that would be intimidating, hostile, or offensive to a reasonable person. An employer can be held liable for failing to prevent these workplace conditions, unless it can prove that it attempted to prevent the harassment and that the employee failed to take advantage of existing harassment counter-measures or tools provided by the employer.

<span class="mw-page-title-main">Sexual harassment</span> Unwanted sexual attention or advances

Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards in exchange for sexual favors. Sexual harassment can be physical and/or a demand or request for sexual favors, making sexually colored remarks, showing pornography, and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault. Harassment can occur in many different social settings such as the workplace, the home, school, or religious institutions. Harassers or victims can be of any gender.

Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), is a landmark decision of the US Supreme Court. The case arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male co-workers with the acquiescence of his employer. The Court held that the protection of Title VII of the Civil Rights Act of 1964 against workplace discrimination "because of... sex" applied to harassment in the workplace between members of the same sex.

<span class="mw-page-title-main">Equal Employment Opportunity Commission</span> United States government agency enforcing civil rights laws against workplace discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency that was established via the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability, genetic information, and retaliation for participating in a discrimination complaint proceeding and/or opposing a discriminatory practice.

<i>Jenson v. Eveleth Taconite Co.</i> U.S. class-action sexual harassment lawsuit

Jenson v. Eveleth Taconite Co., 130 F.3d 1287, was the first class-action sexual harassment lawsuit in the United States. It was filed in 1988 on behalf of Lois Jenson and other female workers at the Eveleth Taconite mine in Eveleth, Minnesota on the state's northern Mesabi Range, which is part of the Iron Range.

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), is a US labor law case, where the United States Supreme Court, in a 9–0 decision, recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964. The case was the first of its kind to reach the Supreme Court and would redefine sexual harassment in the workplace.

Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories". The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.

Equal Rights Advocates (ERA) is an American non-profit gender justice/women's rights organization that was founded in 1974. ERA is a legal and advocacy organization for advancing rights and opportunities for women, girls, and people of marginalized gender identities through legal cases and policy advocacy.

Crawford v. Nashville, 555 U.S. 271 (2009), is a United States Supreme Court case in which the Court unanimously ruled that Title VII of the Civil Rights Act of 1964 protects an employee who opposes unlawful sexual harassment, but does not report the harassment themself.

Harassment covers a wide range of behaviors of offensive nature. It is commonly understood as behavior that demeans, humiliates, and intimidates a person, and it is characteristically identified by its unlikelihood in terms of social and moral reasonableness. In the legal sense, these are behaviors that appear to be disturbing, upsetting or threatening. Traditional forms evolve from discriminatory grounds, and have an effect of nullifying a person's rights or impairing a person from benefiting from their rights. When these behaviors become repetitive, it is defined as bullying. The continuity or repetitiveness and the aspect of distressing, alarming or threatening may distinguish it from insult, It also constitutes a tactic of coercive control, deployed by an abusive spouse in a context of domestic violence. Harassment is a specific form of discrimination, and occurs when a person is the victim of unwanted intimidating, offensive, repeated or humiliating comments or behavior. To qualify as harassment, there must be a connection between the harassing behavior and a person's protected personal characteristics or prohibited grounds of discrimination, and the harassment must occur in a protected area. Although harassment typically involves behavior that persists over time, serious and malicious one-off incidents are also considered harassment in some cases.

Workplace harassment is the belittling or threatening behavior directed at an individual worker or a group of workers.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), is a US labor law case of the United States Supreme Court in which the Court identified the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act of 1964 for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. The court held that "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 a plaintiff victim."

<span class="mw-page-title-main">LGBT employment discrimination in the United States</span>

LGBT employment discrimination in the United States is illegal under Title VII of the Civil Rights Act of 1964; employment discrimination on the basis of sexual orientation or gender identity is encompassed by the law's prohibition of employment discrimination on the basis of sex. Prior to the landmark cases Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), employment protections for LGBT people were patchwork; several states and localities explicitly prohibit harassment and bias in employment decisions on the basis of sexual orientation and/or gender identity, although some only cover public employees. Prior to the Bostock decision, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover LGBT employees; the EEOC determined that transgender employees were protected under Title VII in 2012, and extended the protection to encompass sexual orientation in 2015.

Bundy v. Jackson, 641 F.2d 934, was a D.C. Circuit opinion, written by Judge Skelly Wright, that held that workplace sexual harassment could constitute employment discrimination under the Civil Rights Act of 1964.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), is a landmark employment law case of the United States Supreme Court holding that employers are liable if supervisors create a hostile work environment for employees. Ellerth also introduced a two-part affirmative defense allowing employers to avoid sex discrimination liability if they follow best practices. Ellerth is often considered alongside Faragher.

Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used. The case involved Paulette Barnes, a payroll clerk who worked for the Environmental Protection Agency. Barnes brought the case after losing her job for refusing the advances of a male supervisor. The case was initially dismissed, but won on appeal in Barnes v. Costle (1977). During Barnes v Costle, the United States Court of Appeals for the District of Columbia Circuit reversed the original findings and ruled it was sex discrimination for a woman to suffer tangible employment losses for refusing to submit to requests for sexual favors. The appeals ruling was based in part on the Williams v. Saxbe (1976) decision by a U.S. District Court which ruled that quid pro quo sexual harassment constitutes sex discrimination under the Civil Rights Act of 1964. Barnes also found that companies are liable for not stopping sexual harassment if they know it is being conducted by supervisors. As a result of Barnes v. Costle, Barnes received about $18,000 for back pay and the loss of promotions.

<span class="mw-page-title-main">Victoria Lipnic</span> American lawyer (born 1960)

Victoria Ann Lipnic is an American lawyer and public figure. She served in multiple senior United States government positions. She was Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC), nominated to two terms by President Barack Obama, 2010 – 2020.) She served as Chair (Acting) of the EEOC under President Donald J. Trump from 2017 – 2019. Prior to her appointments to the EEOC, she was Assistant Secretary of Labor under President George W. Bush. The United States Senate confirmed her unanimously to each of these positions.

Diane R. Williams was an American lawyer who is best known for her part in the landmark sexual harassment case, Williams v. Saxbe. Williams was fired from her job at the U.S. Department of Justice after refusing sexual advances from her boss. She sued in a Washington federal court and won, resulting in the first U.S. District Court ruling that quid pro quo sexual harassment constitutes sex discrimination under the Civil Rights Act of 1964. Williams was a news aide for the Washington Post in the late 1960s and also served as a reporter for the Chicago Tribune. She had a 30-year career as a lawyer.

Bostock v. Clayton County, 590 U.S. 644 (2020), is a landmark United States Supreme Court civil rights decision in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity.

References

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  7. ↑ "Bostock v. Clayton County, Georgia" (PDF). US Supreme Court. Retrieved June 21, 2020.
  8. ↑ Bostock v. Clayton County (2020)
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  13. 1 2 3 Kiernan, Laura A. (May 7, 1980). "Judge Again Rules for Woman Fired for Spurning Her Boss". Washington Post. ISSN   0190-8286 . Retrieved May 7, 2023.
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  19. ↑ Text of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) is available from: Findlaw Justia
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  23. ↑ "U.S. Supreme Court: Burlington Industries, Inc. v. Ellerth". FindLaw. June 26, 1998. Retrieved October 7, 2012.
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  25. ↑ Sherwyn, David; Heise, Michael; Eigen, Zev J. (March 1, 2001). "Don't Train Your Employees and Cancel Your"1-800" Harassment Hotline: An EmpiricalExamination and Correction of the Flaws in theAffirmative Defense to Sexual Harassment Charges". Faculty Scholarship. Cornell Law School.
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  31. ↑ "Congress approves bill to end forced arbitration in sexual assault cases". NPR . Archived from the original on July 25, 2023.
  32. ↑ Gregorian, Dareh (March 3, 2022). "Biden signs bill ending ending forced arbitration in sexual misconduct cases". NBC News. Retrieved March 3, 2022.
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  35. ↑ Gillett, Rachel (November 10, 2017). "Sexual harassment isn't a Hollywood, tech, or comedy world issue — in fact, it affects everyone". Business Insider. Retrieved November 23, 2017.
  36. ↑ JESS BIDGOOD; MIRIAM JORDAN; ADAM NAGOURNEY (October 29, 2017). "Sexual Misconduct in California's Capitol Is Difficult to Escape". The New York Times. Retrieved October 30, 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
  37. ↑ 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 December 13, 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.
  38. ↑ Saad, Bianca N. "Required Harassment Prevention Training FAQs" (PDF). CalChamber. California Chamber of Commerce. Retrieved June 2, 2020.
  39. ↑ http://ilga.gov/legislation/publicacts/101/PDF/101-0221.pdf [ bare URL PDF ]
  40. ↑ "Amid #MeToo, New York Employers Face Strict New Sexual Harassment Laws". NPR.org.
  41. ↑ "Employers". Welcome to the State of New York. June 14, 2018.
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