Sexual Harassment and the Legal Environment

Introduction

Sexual harassment is any unsolicited behavior that workers face as a result of their sex and it includes sexual favors, petitions for sexual advances as well as physical and verbal misconduct that are sexual in nature. The paper shall look at how sexual harassment relates to businesses, the government as well as society in general. It shall also look at ethical and legal issues related to sexual harassment. Lastly, some suggestions for corrective actions will be given.

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Types, prevalence and effects of sexual harassment on businesses and society in general

When solicits for sexual favors or unwelcome sexual advances occur in order to approve or reject employment applications or make working environments hostile then this is said to constitute sexual harassment. Consequently, sexual harassment may take the form of verbal as well as physical contact.

Sexual harassment is evident in almost all types of industries as it can occur in both white-collar as well as blue-collar settings. Surveys indicate that there is roughly fifty percent of women have experienced sexual harassment in their workplace at one point in their entire working life. This indicates that the issue is more prevalent among females than their male counterparts. It should however be noted that despite numerous occurrences of sexual harassment in the workplace, very few victims actually report the matter to concerned authorities. This is largely driven by the fear of job loss, lack of confidence in the criminal justice system that something will be done, fear that their career will be ruined, fear of being identified as a victim of sexual harassment or fear of being labeled as a malicious individual. However, the Equal Employment Opportunity Commission (EEOC) has reported that sexual harassment charges have increased by forty percent over the past decade. (EEOC, 2000)

Studies have shown that sexual harassment can be detrimental to employees and employers alike. When it occurs severely, then victims may suffer from depression, sleep disturbance, anxiety, migraines, weight loss as well as other emotional health complications. Firms also lose out financially because employees subjected to this form of harassment may avoid reporting to work in order to minimize victimization. This usually occurs in the form of insincere sick leaves that cause substantial losses. Some employees may take more intense actions such as choosing to quit or transfer to another firm. Estimates show that employees have lost close to two million dollars annually as a result of job departures related to sexual harassment. This is because most of them may not be compensated fully after departure. (EEOC, 2000)

Employers are not also immune from these losses. It is a known fact that high employee turnover costs companies large sums of money as training and recruitment take up a lot of time and resources. Besides this, employees who take frequent work leaves in order to escape hostile working environments may subject employers to huge losses brought on by diminished productivity. It has been shown that companies lose about three hundred and twenty-seven million dollars annually through sexual harassment-related occurrences. In the end, the government is faced with a condition in which it has to contend with lower productivity which often reflects on the country’s overall GDP growth. If sexual harassment occurs at unprecedented levels, then this could tarnish the image of employers, companies as well as the country in general.

Laws and cases on sexual harassment

Sexual harassment in the United States is governed by Article VII Of the US constitution. In 1976, the first sexual harassment case was heard but fifteen years later, the wider public began encompassing the importance of this problem. In fact, during that same year, Congress passed an amendment to improve title seven. Prior to this legislation, workplace sexual harassment suits only provided victims with meager compensation as well as job reinstatements as nothing was given for emotional as well as mental stress experienced by the said victims. Consequently, the Civil rights Act in 1991 dealt with this deficiency by including damages for indifference, inconvenience, mental or emotional pain as well as loss of life enjoyment or non-pecuniary losses. However, some limits have been placed on the total sum of money that can be received as punitive damages from any one employer. (Civil Rights Act of 1991, 42 USC §1981 a, 1994)

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There are two sets of legal grounds covered under article VII. The first is known as Quid Pro Quo sexual harassment. This refers to a case in which a supervisor/ employer solicits sexual favors in order to provide the victim with job-related benefits. The second set refers to a hostile working environment in which sexual harassment occurs. Quid Pro cases are more direct in nature as cases are usually related to employment decisions. Courts usually follow respondent superior doctrines. Here, companies are held liable irrespective of their awareness of the issue or not. In Henson vs. City of Dundee (1992), it was reasoned by the US Court of Appeal that

‘Since the supervisor was acting within at least an apparent scope of authority entrusted to him by his employer when he was making employment decisions then his conduct can be fairly imputed to the source of that authority.’ (Mann & Roberts, 2003)

The latter case was an example of the company’s strict liability. Here the company claimed that it was not aware of a supervisor’s actions, however, the court held that the supervisor was acting on behalf of the company and his actions, therefore, reflected those of his employer.

With the advancement in many civil suitcases, employers and supervisors rarely engage in Quid Pro Quo sexual harassment, instead, most of them may be accused of hostile work environments. A workplace may be offensive, intimidating or hostile if the coworkers or supervisors take part in inappropriate sexual behavior. In the Bundy vs. Jackson (1983) case, it was asserted that Bundy had either three alternatives which were

  1. Quit his job
  2. Put up with the harassment
  3. Oppose it and hence worsen the situation (Mann & Roberts, 2003)

In other words, the Columbia District Court of Appeal was trying to show how hostile working environments are a complicated set of cases to deal with in the legal system. Nonetheless, they still held that a hostile working environment was still part of the discrimination covered under article VII of the constitution. This case served as an example for other courts.

In the Meritor vs. Vinson (1986) case, the concept of a hostile work environment was further propagated. It was held that “this conduct has the effect or purpose of interfering unreasonably with a person’s work performance or creating a hostile, offensive or intimidating working environment” (Meritor v. Vinson, 1986)

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The latter case caused a lot of debate concerning sexual harassment in general and a hostile environment in particular. Many legal experts felt that there was a need to clarify all the issues that make up hostility at the workplace. Additionally, there was a need to look into the issues that are required in order to reduce a victim’s work performance.

The Meritor vs. Vinson (1986) case put forward the assertion that a hostile environment is one in which discrimination is based on one’s sex, unsolicited and severe enough to cause an individual’s employment conditions to be altered. As it can be seen these assertions still leave many questions unanswered. For example, it is not understood whether flirting in the workplace can still occur, also, one would wonder who has been granted authority to determine appropriate or inappropriate sexual actions. Also, is it fair to expect employees to put up with certain forms of sexual discrimination since it has not constituted abusive work environments? All these unanswered questions have caused problems in court decisions as different courts have interpreted such actions unpredictably. Differences in decisions have been brought on by issues surrounding interpretations of unwelcome sexual behavior. In fact, there is a very long list of issues that courts have passed as hostile working environments and they include; embarrassing jokes, sexual touching, extreme use of vulgar language, derogatory statements as well as pornography. (Meritor v. Vinson, 1986)

There are several examples of cases that reflect such hostile environments and they include; the Hall vs. Gus Company, the Robinson vs. Jacksonville Shipyards and the Waltman vs. International Paper. In the Hall vs. Gus case, three women worked for the latter company as traffic controllers. These women underwent several forms of verbal abuse under the company’s employees although their perpetrator’s behavior was not sufficiently explicit. For instance, in certain scenarios, co-workers would write explicit terminologies in the women’s car windows. In other scenarios, they would urinate in their water bottles or show them pornographic materials. The court held that their behavior had violated the constitution’s stipulations on sexual harassment.

In Robinson vs. Jacksonville Inc., the plaintiff worked for a male-dominated firm in which she was continually shown nude photographic images and sexually explicit graffiti. The court held that the perpetrators’ behavior was consistent with specifications within title VII. It was declared that the plaintiff belonged to a category of victims specified within the latter Act. Additionally, the harassment under consideration was unwelcome and carried out because of the plaintiff’s gender. Also, since the behavior was carried out in an open manner then the employer either knew or ignored the sexual behavior or he should have known about it. (Fitzergerald, Swan & Fisher, 1995)

The Walt man vs. International Paper case highlighted other elements of a hostile environment. The plaintiff was continually subjected to several forms of verbal abuse such as a threat to cut off her breast and pinching/ grabbing the victim. The court held that these actions were sufficient enough to create a hostile environment for the plaintiff.

Prima facie situations are also tolerated in sexual harassment cases. In other words, plaintiffs are allowed to use sexual harassment incidences that occurred to other coworkers in order to show that their workplace is indeed a hostile environment. Some courts have made decisions in favor of plaintiffs.

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Employers are liable to pay damages if sexual harassment occurs within their firms. This is usually the case if the harassment manifests itself as a tangible action through any of the following.

  • Demotion
  • Unfavorable project allocation
  • Firing

Also, employers are also liable if they have created a hostile work environment for their employees. However, the latter incident can be defended if it can be shown that an employer tried to make corrective actions to change these circumstances. Besides that, if the alleged victim failed to embrace the company’s corrective actions then it is likely that the employer may be freed from liability. Nonetheless, if it can be shown that an employer knew of sexual harassment by an employee to another employee and failed to take any corrective actions, then he is liable to pay compensatory damages. (Fitzergerald, Swan & Fisher, 1995)

Suggestions for corrective actions

Companies need to create wok policies that tackle sexual harassment. In this regard, they need to define what issues can make up a hostile environment as well as quid pro quo situations. Besides that, penalties for causing sexual harassment need to be clearly defined as well as assurances of confidentiality. Good company policies are just one of the methods for curbing the occurrence of this offense; others include the institution of sound sexual harassment complaints procedures. In this regard, companies need to make sure that their respective employees do not have to face leaders who themselves despise, committed or are non-reactive to sexual harassment. The best way of ensuring this is by creating a separate team within the firm to deal with such cases. This will ensure impartiality as well as confidentiality. Lastly, businesses need to ensure that they promptly enforce their sexual harassment policies by being aggressive and consistent at all times. Ways in which this can be achieved will be through analysis of hiring and firing procedures to determine whether there is any gender discrimination as the latter may be closely associated with sex discrimination.

Conclusion

In conclusion, businesses are highly affected by sexual harassment and their actions reflect on the government’s as well as society’s ability to deal with the problem. First, all persons need to understand what sexual harassment entails and how the law has dealt with it in the past and the present. This will enable them to implement policies and procedures that are well-informed. Sexual harassment has cost individuals and businesses huge sums of money, tarnished business names and affected the physical and mental well-being of its victims; it is, therefore, imperative to deal with this issue effectively as well as aggressively so as to minimize the latter mentioned effects.

References

Mann, R. & Roberts, B. (2003). Sexual harassment in the workplace: a primer. New York: Associated Press Meritor Savings Bank v. Vinson, 477 US 57 (Mass. App. Ct. 1986).

Fitzergerald, L., Swan S. & Fisher, K. (1995). Why didn’t she just report him? Legal and psychological responses to sexual harassment. Social issues Journal, 117(3), 122.

EEOC. (2000). Sexual harassment charges. Web.

Civil Rights Act of 1991, 42 USC §1981 a (1994).

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