Sexual Harrassment Essay, Research Paper

History & the Law

Under Title VII of the Civil Rights Act of 1964, Sexual harassment is a form of sex discrimination. Federal law as well as various state fair-employment laws prohibit employers with 15 or more employees from treating members of one sex or race differently from members of the opposite sex or another race in terms, conditions, or privileges of employment. The statutory and regulatory laws govern the entire employment process from pre-employment activities such as recruiting, through an employee’s career with the organization, including termination. The prohibition against sex discrimination imposes responsibility upon employers to afford their employees an environment free from sexual harassment and from the fear that it may occur.

The Equal Employment Opportunity Commission (EEOC) can file lawsuits on behalf of victims of sexual harassment, women who take their accusations to court face even bigger obstacles than mere public disapproval. The legal process is long and cumbersome – it can be years from the first complaint to the final verdict and in the meanwhile, the woman is in a legal, professional and often financial limbo. Women are not entitled to collect damages under the Civil Rights Act – just back pay; so many women don’t see this process as worth the trouble. Even those, however, who do file a complaint and win a harassment case, may feel lost. Though, Title VII offers reinstatement to previous job, the individual may be shunned or harassed by co-worker thus making conditions even more uncomfortable than they were beforehand. Common law tort lawsuits, such as intentional infliction of emotional distress and assault and battery, provide a remedy in certain types of sexual harassment cases that is totally dependent of any of the statutes and governmental agencies. However, the solutions proposed might seem comprehensive in plans to lessen sexual harassment in the workplace and punishment of harassers, women still face formidable obstacles in preventing harassment from continuing. The proposed measures fail to cover all aspects of harassment, though the truth is, it is virtually impossible to formulate a plan to do so. Anti-harassment policies in the workplace can significantly lessen the occurrences of harassment by co-workers, but in reality, corporate policies are only as good as the supervisors that enforce them.

Evidently, sexual harassment has manifested itself into the everyday work environment, and has now unfortunately become a common occurrence for some women. Though government procedure countering this problem has improved considerably over the past few years, as long as there are women in the work force, they will inevitably be subjected to the torture that is sexual harassment.

Definitions

Sexual Harassment is defined as “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature when 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; 2) submission to or rejection of such conduct is used as the basis for employment decisions; or 3) such conduct has created an intimidating, hostile, or offensive working environment.” There are two kinds of sexual harassments- quid pro quo (1,2) and hostile environment (3). In a quid pro quo, if it’s proven that some specified sexual conduct is a condition for some sort of employment advantage, it’s and actionable claim. If the conduct is suggested for the receipt of employee benefits, promotions, continued employment in a particular job or continued employment at all, it also is quid pro quo. In a hostile environment, the employee must prove two things for the action in this case. First, the employee must establish that he or she was subjected to unwelcome physical and/or verbal conduct of a sexual nature. Secondly, the employee must prove that the conduct was so severe or pervasive that it unreasonably interfered with the employee’s job performance, or that it created an abusive, intimidating or offensive working environment.

What constitutes “conduct of a sexual nature”? It is understood that this includes sexual advances or propositions, but this term also refers to many other forms of indirect sexual harassment as well. The forms that such sexual harassment can take are as varied as a perverse imagination can create. Sexual conduct can also include pranks, threats and intimidation, sexual commentary and lewd humor, and sexual or pornographic pictures permeating the workplace. Hostile acts related to an employee’s gender are another type of prohibited conduct of a sexual nature, even though they may not involve sexual overtures at all.

CASE 1: Jenson v. Eveleth Taconite Co.

The sexual harassment case, Jenson v. Eveleth Taconite Co., set precedence over many earlier sexual discrimination cases in the U.S. because of the vast complexities and length of time it took for the settlement of the case. The Minnesota mining company was found liable in the first sexual harassment lawsuit, which gains class action certification and settled the 10-year-old case with its female miners. Eveleth Taconite Co. would have exposed itself to high damages if the 15 women had to testify about the pervasive sexual harassment and discrimination in the mines. Although the landmark lawsuit paved the way for future class action sex harassment suits, the plaintiffs had a tortuous legal battle that began in 1988 when they filed in Minnesota’s federal court. The case required the women to testify during three stages of the litigation.

The women’s suit claimed they were subjected to a hostile work environment that violated Title VII and the Minnesota Human Rights Act. They asked for compensatory and punitive damages and an injunction requiring Eveleth’s management to enforce policies prohibiting harassment and discrimination. The women claimed they suffered physical harassment that ranged from unwanted touching to offensive language, including threats of rape. Their male coworkers posted pornographic photographs or drew sexually explicit graffiti on the mines’ walls. Some women miners carried mace and knives for protection. Several plaintiffs were unable to work because they developed stress disorders.

The first phase determined if the lawsuit qualified as a class. The women testified about the occurrences of sexual harassment and provided statistical information that showed Eveleth did not use an objective selection process in hiring women and denied them opportunities to obtain a higher position. Although the evidence convinced a federal judge to grant class certification, the motion for an injunction was denied

After the 1993 trial, a judge found for the plaintiffs in the liability phase. The court then appointed a negotiator to determine punitive and compensatory damages.

During the damages phase, Eveleth’s attorneys launched an investigation into the women’s backgrounds and required them to testify. The women countered with psychological experts who testified about how the harassment had affected them. Despite this testimony, the special master found the women might have been exaggerating and awarded a low compensatory figure and no punitive damages.

The plaintiffs appealed, and the Court threw out the special master’s decision and ordered a full trial on the damages issue.

“In its decision, the court wrote, “It should be obvious that the callous pattern and practice of sexual harassment engaged in by the Eveleth Mines inevitably destroyed the self-esteem of the working women exposed to it. The emotional hardship, brought about by this record of human indecency, sought to destroy the human psyche as well as the human spirit of each plaintiff. The humiliation and degradation suffered by these women is irreparable. Although money damages cannot make these women whole or even begin to repair the injury done, a damages award can serve to set a precedent that in the environment of the workplace such hostility will not be tolerated.””

As the women and Eveleth battled, the number of sexual harassment cases increased nationwide, and the legal community got better at trying these cases. This sparked a new common ground that sexual harassment will not be permitted and under no circumstances will the courts allow this discrimination to go on.

CASE 2: EEOC v. Mitsubishi Automobiles

On April 10, the EEOC had filed a lawsuit on behalf of hundreds of female employees who work at Mitsubishi’s Normal, Illinois, car-manufacturing plant. The suit alleges that hundreds of women were sexually harassed over several years, but the company did little or nothing about their complaints. The EEOC’s lawsuit argues that as many as 700 women, including secretaries, line workers and clerical workers, were routinely fondled, abused and subjected to a hostile work environment. The suit seeks back pay with interest and benefits, compensatory and punitive damages.

Soon after the EEOC’s lawsuit, 29 women who work at the same plant filed a complaint in federal court alleging that they were sexually harassed. They say men at the plant passed around photographs of male Mitsubishi workers having sex with prostitutes at parties. Many of these men frequented such parties after the pictures were made. The women were groped and subjected to raunchy insults and pranks. They complained that male co-workers and supervisors kissed and fondled women, called them “whores” and “bitches,” posted sexual graffiti and pictures, including pornographic drawings of the women workers, demanded sexual favors and retaliated against women who refused.

Mitsubishi spokespeople say the firm is innocent of all charges and has actively sought the support of its workforce in rallying against the sexual-harassment allegations.

Mitsubishi Motors will pay $34 million to settle allegations that women on the assembly line at its Illinois factory were harassed, groped and insulted. The 350 women who have worked at the auto plant since 1987 will share the settlement. The women will receive anywhere from a few thousand dollars to $350,000 each. The settlement agreement between Mitsubishi and the Equal Employment Opportunity Commission contained no admission of wrongdoing by the company. Mitsubishi said 20 workers were fired in 1997 for sexual harassment and several others were disciplined.

CASE 3: Lelia Bush v. Astra AB

A pharmaceutical company recently agreed to pay $9.85 million to settle claims that its president and other executives pressure female employees for sex. The settlement is the largest ever obtained by the Equal Employment Opportunity Commission. The original complaint was filed by Lelia Bush, a former Astra USA sales representative, who said women were constantly solicited for sexual favors while she worked there. Astra AB, a Swedish company, admitted that it allowed a hostile work environment, including requests for sexual favors in exchange for favorable treatment, at its U.S. headquarters.

“The EEOC charged that the company’s former president, Lars Bildman, replaced older female employees with young, single women who were pressured to have sex. Former employees said the president demanded that eight hours of work be followed by eight hours of drinking and partying,” according to the Associated Press. Bildman, who was accused of spending company money for his sexual fetishes, was fired in 1996. The $9.85 million will be split among 79 women and a man who said he was for speaking out.

Case(s) Evaluation

They may be doctors or typists, police officers or telephone operators, construction workers or even members of Congress – more than half of workingwomen have faced the problem of sexual harassment at some point in their careers. Although the severity may vary from patterns of obscene joking to outright assault, the emotional damage is often profound and long lasting. Up until just a few years ago, women had no recourse when confronted with such harassment by a boss or co-worker. However, the problem continues to thrive among the female work force reminding women of their vulnerability and creating tensions that make their jobs more difficult. The recent cases that have been either settled out of court or won in the courtroom, have set sexual harassment in the lime-light. The backing of the EEOC and precedent cases have initiated a wake-up call to discrimination to the point of increased lawsuits, yet with a decreasing number if incidents of sexual harassment occurring. Millions of dollars have been won by the female victims and companies are quickly establishing strict no harassment policies to prevent any future liabilities.

CASE 4 & Evaluation: Oncale v. Textron Oil

In a case involving a man who was harassed by other men at work, the Supreme Court justices interpreted sexual harassment as harassment because the individual is a man or a woman, not because they were abused in a sexual matter. Joseph Oncale’s male co-workers on an offshore oilrig in 1991 threatened to rape him and forced a bar of soap between his buttocks. A lower court threw out his sexual harassment suit on the ground that he was brutalized by men and cannot rely on a law that was drafted to protect women from men’s harassment. “Although the Washington Post reports that a majority of the justices seemed to think that civil rights law applies to same-sex harassment, several said that a victim must show that harassment was due to his sex.” Even Justice Ruth Bader Ginsburg said that “There was no other sex involved in this case….How we can know how these gross people would have treated women?” They interpret sexual harassment as harassment because the individual is a woman or a man, not because they were abused in a sexual way. Under this rationale, a harasser who harasses both sexes is not a harasser. The Justice Department has sided with Oncale.

The US Supreme Court recently ruled that a federal law that bans on-the-job sexual harassment could apply even when the harasser and the victim are the same sex.

In a case closely watched by gay rights groups, the decision provides victims of homosexual harassment with their first-ever federal remedy. By a unanimous vote, the court revived the federal lawsuit of a Louisiana man, Joseph Oncale, who says he was sexually pursued and harassed by his male supervisor and two other men during his four months of working on a Gulf of Mexico oil rig. The ruling means that victims of sexual harassment by people of the same sex can sue in federal court even though Congress never has said bias based on sexual orientation is illegal. The court made it clear that someone claiming same-sex harassment must prove that the alleged discrimination was based on gender, and “not merely tinged with offensive sexual connotations.”

Interview

In an interview, labor and employment lawyer Steven Sack discusses the prevalence of sexual harassment and sexual discrimination in the work place. Sacks states that while statistically harassment in the workplace is decreasing, with more women entering the work force, the number of complaints is rising. The following are two important questions asked, that is essential in dealing with sexual harassment.

Insight: Do you think harassment and discrimination are as much a problem as they were 20 years ago?

Steven Sacks: They are more prevalent as more and more women enter the workforce, many for the first time. Few are knowledgeable about their legal rights. Even when they know they have rights, they don’t know what those rights are. And secondly, while the number of discrimination complaints and the amount of harassment might be going down statistically on a ratio basis, many more women are entering the workplace, so collectively the number of these complaints is staggering and increasing every year.

Insight: Is failing to establish a paper trail the biggest mistake that women make?

Steven Sacks: Absolutely. Let me give you two tips in this area. In sexual harassment many women are afraid to come forward if they believe they will be deemed a troublemaker and might end up getting fired. Nothing could be more unlikely.

No. 1, you have to document your complaint so you don’t indicate that it was something that was insignificant to you. Workers can’t suddenly complain about something that happened three years ago and expect to get relief in court. Under federal EEOC rules you have 300 days, and in some areas 150 days, to make a complaint.

No. 2, by documenting your complaint you put the company on notice. Companies are legally responsible objectively and immediately to investigate the complaint. Then if they demote you, transfer you, reassign you or fire you, you can file a retaliatory complaint. When you write a complaint you may actually be protecting your job.

Employer Rights if Taken Correct Action

An employer who quickly investigates a claim of sexual harassment, verifies the claim, and promptly punishes the accused harasser can avoid liability for sexual harassment under the test for employer liability recently established by the US Supreme Court. A recent HR Direct stated:

“During an business trip, a female employee was subjected to crude sexual comments and gestures by a company vice president. The employee objected and warned the vice president that his behavior was sexual harassment. The employee reported the harassment to the director of human resources. The employer promptly investigated the complaint, found that it was valid, issued a verbal and written reprimand to the vice-president, and later suspended him without pay for seven days. In an extra measure of good management, the employer promised that the employee would never have to work with the vice president again, guaranteed that her complaint would not affect her chances for promotion, and offered to pay for any counseling she might need. The employee sued for sexual harassment anyway.”

The U.S. Supreme Court recently established that under the test for employee liability, an employer might assert a defense to a claim of sexual harassment when no adverse employment action is taken. However, the employer must show that it exercised reasonable care to prevent and correct sexual harassment and that the employee claiming harassment unreasonably failed to take advantage of the employer’s policy. Although the employee did take advantage of the employer’s policy in this case, the court held that the employer’s swift response stopped the harassment and prevented a hostile environment from developing. Many states require companies to have a corporate sexual harassment policy with full visibility to all employees.

HR Focus Edition 74, December 1997, listed six steps to corporate compliance to prevent harassment in the workplace. The steps include establishing good legal advice and conducting thorough investigations as followed.

1) GET GOOD LEGAL ADVICE. Seek the assurance of your local legal counsel about compliance with all of the current laws and regulations before posting or disseminating anti-sexual harassment materials. Make sure you are abiding by the laws of those states where you have employees. Consult counsel before implementing any new policies.

2) IMPLEMENT A POLICY. Amend your employee handbook to include explicit policies on all forms of harassment, including sexual harassment, whether it is heterosexual or same-gender. Most importantly, enforce it and take it very seriously.

3) CONDUCT PREVENTION SEMINARS. Many law firms are willing to present such seminars at no charge. Conduct these meetings annually and include information about same-sex harassment.

4) OUTLINE GRIEVANCE STEPS. Show employees how to file a grievance, and include sexual harassment complaints within that mechanism.

5) CONDUCT THOROUGH INVESTIGATIONS. Respond promptly and sensitively to complaints, but be thorough. Conduct these investigations with your in-house human resources staff either under the guidance of counsel or by contract with an outside service. Seek legal advice before doing anything, though. As for other employees, communicate openly from the start. Make it clear that you cannot promise confidentiality for witness statements; let them know also that you will not unnecessarily disseminate information, either.

6) TAKE NECESSARY CORRECTIVE ACTION. Do not be afraid to enforce the disciplinary action warranted by the results of the investigation. You must also concern yourself with the rights of the allegedly harassing party the right against defamation and wrongful discipline/termination.

As a result, of numerous laws-notably the Civil Rights Act of 1991, the employers face more financial exposure than ever before. Organizations-and their directors, officers, and managers-that violate federal and state regulations prohibiting harassment and discrimination, or that fail to adequately supervise their employees, can be held liable for not taking steps to prevent these situations. A multimillion-dollar verdict could threaten an organization’s profitability or even its very existence. If a company instills a no harassment policy, legal action can be preventable.

Concluding Ideas of Sexual Harassment

Federal law as well as various state fair-employment laws prohibits employers from treating members of one sex or race differently from members of the opposite sex or another race in terms, conditions, or privileges of employment. The laws also regulates employment process from pre-employment to the life of the employee and even afterwards. Sexual Harassment is not only controlled, but many famous court cases have set precedence in the progression of stronger regulations decreasing sexual harassment in the workplace. Not only has women been recognized, a case dealing with the same-sex brought the reality of sexual harassment between two men or two women. Sexual Harassment can be defined as an unwelcome sexual advance, requests for sexual favors and other verbal or physical conduct of a sexual nature. These constitute sexual harassment when submission to such conduct is either made explicitly or implicitly based on a term or condition of an individual’s employment. Sexual conduct can be pranks to pornographic pictures permeating the workplace. The employer is and will always be responsible for providing a corporate practice stressing a no sexual harassment environment. The corporate practice calls for companies to create and publicize a forceful policy against sexual harassment. However, first and foremost, educating employees about what constitutes harassment and its effects is vital, because there is considerable uncertainty and disagreement about what harassment is.

Statistics

? The number of sexual harassment plaintiff attorneys has roughly triples to 3,000 from 1991 to 1995.

? A recent Army report indicated that 76% of female soldiers and 78% of male soldiers experiences crude or offensive behavior.

? Sexual harassment touches the lives of 40-60% of workingwomen and similar proportions of female students in colleges and universities.