The Legal Definition of Sexual Harassment - Research Paper Example

?Sexual harassment This research has answered eight questions relating to the legal definitions sexual harassment in the workplace in different contexts and related issues. One is harassment Quid Pro Quo and the other is harassment under hostile conditions. It is different from gender discrimination. Six factors have been shown to constitute a sexual harassment. Unreasonable behavior is part of sexual harassment behavior to determine which circuit courts invariably employ the test of “reasonable person” standard. The alleged misconduct should be so severe and pervasive as to disturb emotional wellbeing and work performance of the victim which conditions are prima facie requirement for a conduct to be characterized as sexual harassment. The paper further lists out reasons for an organization to have sexual harassment policy statement along with the contents of the written policy as stated in the appendix. This research has also discussed the case law of Beth Ann Faragher, Petitioner V. City Of Boca Raton (1998). 1. Define sexual harassment as the term is used legally.  The legal definition of sexual harassment is: the illegal discrimination in employment based on sex. This definition is only a part of the behaviors that could constitute sexual harassment. The illegal employment discrimination behaviors and the experiences of sexual harassment often overlap. They are however not congruent. Some behaviors are readily identifiable as sexual harassment such as the supervisor’s demand on the employee to engage in sexual activity with him as a condition to continue in employment. Sexual harassment may not be overtly experienced by the victim but subjectively in a less defined contexts which may not be illegal (Gold, 2004). In Harris v Forklift Systems, Inc (1993), it was held by the Supreme Court that psychological injury cannot be claimed to prove sexual harassment under the constitutional law. Rather, severe injury is necessary to establish emotional distress. It has been an occupational hazard ever since the time of Industrial Revolution, if not earlier. It was only in mid-1970s, sexual harassment was first judicially recognized as a cause of action. The Civil Rights Act of 1964 makes illegal any discrimination towards an individual in terms of compensation, terms, conditions, or employment privileges based on race, color, religion, sex or national origin of an individual. Equal Employment Opportunities Commission (EEOC) has been entrusted with the responsibility to enforce the provisions of Civil Rights Act relating to discrimination (Gold, 2004). The EEOC’s definition of sexual harassment states “ Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to rejection or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or the effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment” (Gold, 2004, p. 20) The definition has evolved through case law. The EEOC guideline cannot be technically law though it is subject to the judicial review of the Supreme Court. Thus, review has resulted in two kinds of sexual harassment. One, Quid pro quo harassment which arises when an employee is forced to exchange sexual favors for the benefit of employment present or future or to avoid adverse employment action. Second one is Hostile environment harassment that results in “severe or pervasive ridicule, unwelcome intimidation or insult based on sex” (p 21) 2. Explain how sexual harassment differs from gender discrimination.  Gender discrimination is mainly based on an individual’s gender in a sub group of female or male. It is different from sexual harassment for want of sexual component. Gender discrimination is mainly characteristic of stereotyping of the gender’s ‘abilities, competence, status or roles’ of the sub group male or female. (Rush, 2010, p. 62) 3. Provide the legal definition of "quid pro quo" (also known as "vicarious liability") sexual harassment. Provide one example of a behavior which could be found to be quid pro quo sexual harassment.  Quid pro quo sexual harassment involves an individual’s forced submission to an organizational power that directly or indirectly makes it a condition for academic favor, employment decision or the individual’s response to the unwelcome sexual advances. An example of this harassment is the situation in which a professor promises a reward for a student in return for sexual favors, such as better grades, or issue of recommendation to a graduate of school or employment or threatens the student with negative grades in retaliation of student’s refusal to comply with his sexual requests (Paludi, 2011, p. 374). In a workplace environment, the harassment refers to withholding or altering of employment benefits on the employee’s refusal to engage in sexual activity. Examples include not receiving pay raise, getting transferred or being poorly evaluated for the refusal to engage in sexual conduct (Weiner & Craighead, 2010, p. 1575) 4. Provide the legal definition of hostile environment sexual harassment. Provide one example of a behavior which could be found to be hostile environment sexual harassment.  Supreme court has defined hostile environment sexual harassment in Harris v Forklift Systems as “so severe or pervasive that it created work environment abusive to employees because of their race, gender, religion or national origin” Justice Scalia felt helpless in giving a better definition. Many commentators could only give examples such as staring, sexual references, and touching. As hostile environment is a moving target, one should check whether a particular act or behavior constitutes violation of law. Even after 45 years of Civil Rights Act and 25 years after Merritor, definition of sexual harassment remains unclear (Corgel, Sturman, & Verma, 2011).Powel (2010) characterizes this type of harassment as the harasser demanding the employee sexual requests, making comments, giving looks thus creating a hostile work environment 5. List the factors which contribute to a determination of whether behavior is sexual harassment.  EEOC has suggested that courts should consider the following factors that would constitute a particular behavior as sexual harassment. The misconduct must be so offensive that it becomes actionable at law. (1) The conduct can be verbal or physical or both. (2) The frequency of such a behavior. (3) The extent or degree to which the behavior was hostile or offensive. (4) Others’ participation in the harasser’s conduct (5) The status of the co-worker or supervisor who is the harasser and (6) the number of people suffering from such a harassment (Palludi & Denmark, 2010). 6. Define the standard by which "unreasonable" behavior is determined.  The unreasonable behavior involving sexual harassment usually occurs without being witnessed by a third party. What appears to be a consenting behavior often comes out fear of retaliation (Weiss, 2004) In determination of unreasonable behavior, most of the circuit courts follow the “reasonable person” standard. Strangely, in Rabidue v Osceola Refining Company (1986) the lone woman manger’s sexual harassment at the hands of her co-workers like posting the pictures of naked women in demeaning positions was not considered as sexual harassment. Court cited several magazines and calendars carrying such pictures (Marshall, 2005). 7. Explain what situations are considered "severe or pervasive" and why these terms are important.  The Courts require the plaintiff to demonstrate that conduct alleged is so severe or pervasive that is capable of altering the workplace conditions and creating an abusive conditions of environment. Plaintiffs often fail to meet this requirement. An uncertainty surrounding the hostile environment is which standard the judge would use to determine the aspect of severe and pervasive conduct. This is a prima facie requirement to establish sexual harassment and hence these terms are considered very important. For example, in the above cited Rabidue v Osceola, the decision was quite shocking to the woman manger who had felt harassed. Some circuit courts have required that the conduct would be considered severe and pervasive only if it could interfere with the work performance and psychological well-being of a reasonable person in similar circumstances. Some others insist that the trier of fact to determine whether a reasonable woman would so consider under similar circumstances, though it would not give a better protection for women than men. The present position is that regardless of which ever standard adopted, it would only protect employers from the claims of hypersensitive employees (Chan, 1994). 8. Give the main legal reason why every company should have a valid written policy against sexual harassment (besides the fact it is the "right" thing to do.)  According to the American Bar, employers in their own interest must have a written policy on sexual harassment since involves financial implications. Since sexual harassment is viewed in different contexts even as complimentary rather than hostile as considered by men, it is desirable to have a written policy on sexual environment. Since the harassment in legal terms is different from literal terms, it is important to have the written policy so that both the harassers as well as the likely victims understand what constitute sexual harassment. Thus, the written policy should contain definition of sexual harassment, non-retaliation policy, specific procedures for prevention, establishment of reporting procedure, timely reporting procedures etc. (Schickman) Beth Ann Faragher, Petitioner V. City Of Boca Raton (1998) A. The facts of the case Beth Ann Faragher who had worked as a part time ocean lifeguard between 1985 and 1990 for the Marine Safety Section of the Parks and Recreation Department of City of Boca Raton, Florida (City) had been subjected to sexual harassment from her immediate supervisors Bill Terry, David Silverman and Robert Gordon. She had to resign due to harassment and then brought an action against the two of her supervisors Terry and Silverman and the employer, the City of Boca Raton under Title VII, 42 U.S.C. 1983 and Florida Law. Her allegation was that Terry and Silverman had been sexually harassing her by making lewd remarks, uninvited and offensive touching and speaking of women in offensive terms. As these acts were repetitive, they had created a sexually hostile atmosphere. Terry had specifically threatened Faragher that he would not promote a woman to the rank of lieutenant and Silverman had told her to date him or clean toilets for a year. Faragher claimed nominal damages, costs, and attorney fees from the City for the harassment suffered from its agents Terry and Silverman. While the trial court found in Faragher’s favor, the court of appeals reversed the trial court’s judgment and exonerated the City as it could not be held vicariously responsible and as the alleged harassments had been outside the scope of employment. The fact of the harassments from Terry and Silverman were not in dispute. In fact, they themselves had admitted that they had not known the changed policy on sexual harassment of the City which did not disseminate it among its employees. B. The issue in the case (i.e. what was the court asked to review?) The review calls for the identification of circumstances under which an employer can be held liable under Title VII of Civil Rights Act of 1964 for the acts its employees resulting in sexual harassment amounting to employment discrimination. C. The decision of the court The Supreme court decides that an employer is liable vicariously for the discrimination by way of sexual harassment perpetrated by a supervisor, but subject to the reasonableness of the employer’s conduct and also that of a plaintiff victim. D. Whether you agree or disagree with the court’s decision - and why. It is found that the Supreme Court has rightly held the employer liable for the acts of his employees. In the instant case, the supervisors acts of sexual harassment were not sporadic and casual but of repetitive nature. Since the employees in their capacities of agents merge with the employer and therefore the employer is deemed to have committed the same acts. The court’s condition that the employer’s as well as the victim’s conduct must be reasonable as a defense is also not satisfied in this case. Gordon who had been aware of the misconducts of the other supervisors did not care to report it to the City’s administration. Even otherwise, the employer cannot escape responsibility under the false claim of the acts of harassment having been outside the scope of the supervisors’ employment. In fact, it was only during the course of employment, the said acts of harassment had taken place. Appendix A policy on sexual harassments should be in written form so that the employees can guard against indulging in even the unintended acts of sexual harassment A good policy on sexual harassment must state that sexual harassment is undesirable and that it vitiates the working environment besides physically and mentally torturing the victim and that it is against law and punishable. It should state that what gender discrimination is and distinguish it from sexual harassment. The court’s classification of the harassment into two viz Quid pro quo sexual harassment and hostile environment sexual harassment must be mentioned in the policy statement so that it is exhaustive enough to caution the likely harassers against their possible misconceptions of the offences. In order to make in known that sexual harassment is not tolerated by the employer and to encourage victims to notify the employer about the harassments they suffer from their coworkers or superiors, there should be a mention of complaint procedures in the policy statement. The contact details of officials in charge of prevention of sexual harassment at the workplace must also be mentioned. There should be a section detailing with sexual harassment by third parties and action to be taken thereon. The processing of complaints must also be detailed such as investigation timeliness and interim measures. There must be an assurance of confidentiality and assurance of non- retaliation. References Chan, A. A. (1994). Women and sexual harassment : a practical guide to the legal protections of Title VII and hostile environment claim. New York: Routledge. Corgel, J. B., Sturman, M. C., & Verma, R. (2011). The Cornel School of Hotel Adminsitartion on Hospitality . John Willey & Sons . Gold, L. H. (2004). Sexual harassment; pyschiatric assessemnt in employment litigation. Arlington, VA: Aemrican Psychiatric Publishing inc. Harris v Forklift Systems, Inc (1993), 510 U.S.17 Marshall, A. M. (2005). Confrontinmg sexual harasment: the law and politics of everyday life. Burlington, VT : Ashgate Publishing . Palludi, A. M., & Denmark, F. (2010). Victims of sexual assault and abuse : resources and responses for individuals . Santa Barbara, california: ABC, CLIO . Paludi, M. (2011). Sexual Harssment Policies and Practices . In B. J. Bank, Gender and Higher Education. Baltimore, Maryland: JHU Press. Porewell, G. N. (2010). Managing a diverse workforce : Learning actvities . Thousand Oaks, california: Sage. Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986) Rush, R. S. (2010). NCO Guide. PA: Stackpole Books. Schickman, M. I. (n.d.). Sexual Harassment, The Employer's role in prevention. Retrieved Nov 4, 2011, from American Bar.org: Accessed 4 Nov 2011 The Civil Rights Act of 1964 (Pub.L. 88-352, 78 Stat. 241, enacted July 2, 1964) Weiner, I. B., & Craighead, W. (2010). The Corsini Enclyclopedia of Pyscholgy, Volume 4. New Jersey: John Wiley & Sons. Weiss, D. H. (2004). Fair, square & legal: safe hiring, managing & firing practices to keep you & your company out of court. New York: AMACOM Div American Mgmt Assn. Read More