Page 686 - Encyclopedia of Business and Finance

eobf_S 7/5/06 3:21 PM Page 663

Sexual Harassment

Rights Act of 1964. The act barred discrimination based SUBSEQUENT LEGISLATION AND
on a person’s “race, color, religion, sex, or national origin.” COURT DECISIONS
Making hiring or firing decisions based upon these factors The Civil Rights Act of 1991, considered a landmark
became illegal. This law, however, did not specifically development in the sexual harassment arena, allowed
address sexual harassment on the job, leaving the issue in plaintiffs to recover compensatory and punitive damages
a legal gray area. with a cap of $300,000 on large employers (500+ employ-
This changed when the U.S. Supreme Court, in a ees) and $50,000 for smaller ones. Supreme Court deci-
unanimous landmark decision in Meritor Savings Bank v. sions on sexual harassment focused more and more on the
Vinson (1986), effectively confirmed the illegality of sex- application of common sense to the particular situation;
ual harassment. The decision’s impact was threefold: (1) that is, looking at the situation as a “reasonable” person
The ruling confirmed that Title VII outlawed sexual would. In Harris v. Forklift Systems, Inc. (1993), the Court
harassment, an issue that had been debated previously. (2) held that if a workplace is permeated with behavior that is
Quid pro quo harassment was defined; that is, harassment severe or pervasive enough to create a discriminatorily
implying a trade involving sex, such as a supervisor offer- hostile or abusive working environment, Title VII is vio-
ing a subordinate a promotion in exchange for sexual lated regardless of whether the plaintiff suffered psycho-
favors or denying a job benefit for refusal of the supervi- logical harm. Conversely, the decision also held that the
sor’s advances. (3) The concept of “hostile environment” mere utterance of an offensive statement would not nor-
abuse was established. mally constitute a violation of the law.
A hostile environment occurs when an employee is Several Supreme Court decisions issued in 1998 are
placed in an uncomfortable or threatening environment considered among the most significant in defining sexual
because of unwelcome sexual behavior in the workplace. harassment law: In Burlington Industries, Inc. v. Ellerth, the
Unwelcome sexual behavior may include telling jokes or complainant showed that, although she was subjected to
stories of a sexual nature, unwelcome touching such as offensive, vulgar behavior, she had not suffered in any
patting or hugging, displaying suggestive posters or calen- manner relating to her employment situation. In fact, she
dars, sending letters or electronic mail (e-mail) with text had been promoted at the company prior to her resigna-
or images of a suggestive or sexually explicit nature, and tion. The Court ruled that harassment is defined by the
making suggestive facial expressions. The ruling also cau- behavior of the harasser, not by what subsequently hap-
tioned that employers have a responsibility for guarding pens to the worker.
against harassment, a theme echoed in subsequent deci-
Another key portion of this decision and that of an
sions. Following Meritor, employers throughout the
additional case, Faragher v. Boca Raton, addressed
nation began reviewing their personnel policies and prac- employer liability with regard to hostile environment
tices in the light of these new definitions of sexual harass- harassment and the employee’s responsibility to report the
ment. offense to someone with decision-making authority.
Faragher involved a female lifeguard who claimed she had
KEY EVENTS endured repeated sexual harassment from her male super-
During the 1990s, two specific events brought the topic visors, yet she had not formally complained because of her
of sexual harassment into the national spotlight. The U.S. fear of retaliation. Evidence showed that although
Navy’s Tailhook scandal, in 1991, captured the nation’s Faragher’s employer, the city of Boca Raton, Florida, had
attention with reports that female naval officers had been a sexual harassment policy, the policy was unknown to
assaulted in a hallway “gauntlet” by their fellow officers both the complainant and her supervisors. The Court
during the annual convention of naval aviators held in Las indicated that an employer could defend itself successfully
Vegas, Nevada. if proof was provided that the employer had a known,
Also in 1991, the confirmation of Supreme Court effective policy against harassment and that the employee
nominee Clarence Thomas became the center of a contro- failed to take advantage of the policy. Even more impor-
versial firestorm related to a sexual harassment charge. tantly, the Court, in defining the elements of this “affir-
Anita Hill, a university professor, alleged that Thomas had mative defense,” outlined to employers how to prevent a
sexually harassed her from 1981 to 1983 while she worked hostile work environment from ever arising.
for him at the Equal Employment Opportunity Commis- Another 1998 ruling, Oncale v. Sundowner Offshore
sion. Public outcry effectively stopped the confirmation Services, Inc., defined sexual harassment as “gender neu-
proceedings until the accusations could be examined. tral.” With this decision, the law was expanded to include
Ultimately, Thomas was confirmed for the Supreme homosexual situations as well as harassment between two
Court; the controversy, however, had a lasting effect on people of the same gender even when neither is homosex-
the nation’s understanding of sexual harassment. ual. The Court unanimously declared that sexual harass-

ENCYCLOPEDIA OF BUSINESS AND FINANCE, SECOND EDITION 663