The issue of sexual harassment has been prevalent throughout this country from the office of the President of the United States, throughout military services and among educational institutions.
Under Title VII of the Civil Rights Act of 1964, sexual harassment is a form of discrimination and although it is an offense committed by both females and males in assorted measures, it is predominately committed by males against females.
Despite widespread publicity about the perils of sexual harassment, surveys demonstrate that many businesses operating in the United States have yet to address the problem. Moreover, recent news reports indicate that sexual harassment has reached the highest levels of management. The concept of sexual harassment has been around since the mid-1970s.
Today, both classifications of sexual harassment are claimed against men and women, resulting in a potential major loss for a company. The workplace is a place where one should feel comfortable. Yet while creating this comfortable atmosphere, workers should not feel like they have to constantly watch what they say. That is where the sexual harassment can get dangerous because what is not offensive to one person, may be for another.
This is why there needs to be clear cut definitions of what sexual harassment is.
Federal law recognizes two different forms of claiming sexual harassment under Title VII. The first is quid pro quo. Under the quid pro quo form of harassment, a person in authority, usually a supervisor demands sexual favors of a subordinate as a condition of getting or keeping a job benefit.
EEOC guidelines define sexual harassment generally as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. In quid pro quo cases, the offense is directly linked to an individual’s terms of employment or forms the basis for employment decisions affecting the individual. Usually, such cases are easy to recognize the first sexual harassment lawsuit under Title VII was decided on quid pro quo grounds. When such harassment occurs, the subordinate has the legal right to take the employer to court.
An example of this type of harassment is the case of 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.
Lelia Bush, a former ASTRA USA sales representative, who said women were constantly solicited for sexual favors while she worked there, filed the original complaint. 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.
Frequently, a quid pro quo situation does not exist. Many sexual harassment victims are never threatened with termination or lack of advancement.
Rather, they suffer repeated abuse by a hostile work environment, which is an alternative ground for bringing a Title VII sexual harassment action. A hostile work environment arises when a co-worker or supervisor, engaging in unwelcome and inappropriate sexually based behavior, renders the workplace atmosphere intimidating, hostile, or offensive. An example case of hostile work environment can be seen in the Robinson v. Jacksonville Shipyards, Inc.
This case consisted of a shipyard company that employed a female welder who was continually subjected to nude and partially nude pictures posted by her male co-workers. The men posted these pictures not only in common areas, but also in places where the victim would have to encounter them, including her toolbox. The men referred to her as “baby,” “sugar,” and “dear.” The men also made numerous suggestive and offensive remarks to the victim concerning her body and the pictures posted on the walls.
The victim complained about this atmosphere of harassment on a number of occasions, but the company’s supervisory personnel provided little or no assistance. The court found this conduct violated Title VII because the harassment was based on sex, it affected a term or condition of her employment, and the employer knew or should have known about the harassment and failed to take remedial action. Sexual harassment had basically been dormant until October 1991, until Anita Hill accused Clarence Thomas of Sexual Harassment. Anita Hill, a law professor who had once worked with Thomas, nearly derailed his 1991 nomination to the U.
S. Supreme Court with accusations of sexual harassment and inappropriate workplace comments. Hill alleged that Clarence Thomas had occasionally asked her out, talked about porno movies, and joked about a pubic hair on a soda can. Anita Hill testified at the Clarence Thomas confirmation hearings that would appoint him to the Supreme Court Justices.
After the Clarence- Hill case, national awareness about sexual harassment in the workplace heightened considerably.
According to Equal Employment Opportunity Commission filings, sexual harassment cases have more than doubled, from 6,127 in 1991 to 14,420 in 1994. Over the same period, awards to victims under federal laws nearly quadrupled. Before 1991, sexual harassment victims who sought relief found them selves in a legal nightmare.
Federal legislation was put into action to protect employees from on-the-job discrimination, including sexual harassment, but the benefits of pursuing such a case were few. Victims who spoke out jeopardized their jobs, and their reputation, with little reward. Title VII entitled sexual harassment victims to collect only back pay, lost wages and, if they had been forced to leave, to be reinstated in their jobs. Nothing was provided for pain and suffering.
However, these cases were very difficult to win. Congress, recognizing the need to strengthen the remedies for sexual harassment under Title VII, amended the Civil Rights Act in 1991. Now, sexual harassment victims can recover compensatory damages beyond back pay, with a jury trial. Moreover, these damages can encompass emotional pain, suffering, inconvenience, mental anguish, and other losses.
Plaintiffs can also collect punitive damages, if they can demonstrate that an employer acted with malice or with reckless or callous indifference.
Companies that want to manage their risk prudently must act before a problem occurs. Companies need a comprehensive, detailed written policy on sexual harassment. The CEO should issue the policy and make it a high priority of the company.
Second, they need to distribute this policy to all workers, and supervisors. The company policy, when distributed to all, is training enough. The policy should contain specific examples to help employees fully grasp the nature of sexual harassment. Preventing sexual harassment in the workplace requires a considerable investment of time and personnel.
However, investing in these resources will benefit the companies by significantly saving money on the potential legal fees. Companies will also benefit from increased worker productivity and a more hospitable work environment. From a purely business perspective, a company only stands to gain if it takes a no-nonsense, hard-line position on sexual harassment. Not only is it the right thing to do, it is the smart thing to do.
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