Sexual Harassment in the Workplace

LEG A L ISSUES EDITOR: BEATRICE YORKER, JD, MS, FAAN Sexual Harassm.ent in the Workplace D uring the Clarence Thomas confirmation hearing, the testimony of Anita Hill about the alleged sexually harassing behavior of Justice Thomas stunned millions of Americans. The American public was deeply divided about whom to believe in this controversy, but for the first time it brought the problem of sexual harassment in the workplace to the attention of many Americans. Many people did not believe Ms. Hill's allegations, because they did not understand that sexual harassment is also a problem among professionals. However, the problem of sexual harassment is real and does not appear to be abating. For example, a recent survey released by the United States Ninth Circuit Court of Appeals Judicial Conference reported that 60% of the women attorneys within the circuit had experienced sexual harassment while practicing law and appearing in court (SlindFlor, 1992). Thus, if sexual harassment issues are prevalent in a profes- ABOUT THE AUTHOR: 550 sion that, in theory, understands the legal prohibition against sexual harassment in the workplace, it would not be a surprise to know that sexual harassment is a pervasive problem in the American work force. Over the years a number of studies have been conducted to determine the extent of sexual harassment. In most studies, over half of the women surveyed had personally experienced sexual harassment in the workplace (Shoop, 1992). LEGAL DEFINITION OF SEXUAL HARASSMENT Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) prohibits discrimination in employment based on a number of factors including sex. In 1980, the Equal Employment Opportunity Commission (EEOC) issued guidelines which declared that sexual harassment was discrimination based on sex and was a violation of Title VII. Those guidelines define sexual harassment as: unwelcome sexual advances, requests for sexual favors, and other John D. Marshall, JD, is Assistant Vice President for Legal Affairs, Georgia State University, Atlanta, GA. verbal or physical conduct of a 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 by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment (29 CFR § 1604.11). In 1986, the Supreme Court of the United States adopted the EEOC guidelines and declared that sexual harassment could constitute sex discrimination in violation of Title VII (Meritor Savings Bank, FSB u. Vinson, 1986) (Hereafter, referred to as Vinson). UNWELCOME SEXUAL CONDUCT To constitute sexual harassment, conduct must be unwelcome. This means that "...the employee did not solicit or incite it, and...the employee regarded the contact as undesirable or offensive" (Henson v. City of Dundee, 1982). In determining whether conduct is unwelcome, the EEOC has stated that a claim would be strengthened if an individual made a timely complaint or protest to the harasser about the conduct. This AAOHN JOURNAL LEG A L would be especially true in a situation where there had been a prior consensual relationship which might lead the harasser to believe that the advances would be welcome. Under that circumstarice the victim should communicate to the harasser that the conduct is unwelcome to preserve a claim for sexual harassment (EEOC, 1990). On the other hand, the Supreme Court made it clear in Vinson that voluntary submission to sexual conduct would not necessarily defeat a claim of sexual harassment. The court noted that "the fact that sex related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII" (Vinson). Thus, it is not necessary for a victim of sexual harassment to tell harassers directly that their comments are unwelcome. It is possible that an individual's consistent failure to respond to suggestive comments or gestures may be sufficient to communicate that the conduct is unwelcome (Lipsett v. University of Puerto Rico, 1988). Quid Pro Quo Sexual Harassment The first two elements of sexual harassment in the EEOC Guidelines often are referred to as "Quid Pro Quo Harassment." In other words, Quid Pro Quo Harassment exists when an employment decision is made as a result of an individual's submission to or rejection of sexual conduct. Inherent in this type of NOVEMBER 1992, VOL. 40, NO. 11 ISSUES Effecting positive change in response to the legal and social recognition of sexual harassment is within the scope ofoccupational health nursing. sexual harassment is the power that a supervisor has over an employee with regard to issues of promotion, pay increases, and termination. For example, when an employee's job was abolished after she rejected repeated solicitations for a sexual affair, then sexual harassment occurred (Barnes u. Costle, 1977). Hostile Environment Even when an employee's tangible job conditions are not affected by "Quid Pro Quo Harassment," it is still possible to have a claim for sexual harassment if the work environment is sexually hostile. The Supreme Court made it clear in Vinson that an individual could establish sexual harassment by proving that there was a hostile or abusive work environment. The court held that for sexual harassment to violate Title VII, it must be sufficiently severe or pervasive to "alter the conditions of the victim's employment and to create an abusive work environment" (Vinson). According to the EEOC, the central inquiry in determining whether an environment is hostile is whether the conduct "unreasonably interferes with an individual's work performance" or creates "an intimidating, hostile, or offensive working environment" (29 CFR § 1604.11a3). Sexual flirtation or innuendo alone would probably not establish a hostile environment. Likewise, a single or isolated incident of offensive sexual conduct likely would not create an abusive environment. Thus, to prove a claim ofhostile environment, there usually must be a pattern of offensive conduct (EEOC, 1990). The courts have traditionally used a reasonable person standard to determine whether a hostile environment exists. At least one court has stated that Title VII claims should not be "... a vehicle for vindicating petty slights suffered by the hypersensitive" (Zabkowicz v. Westbend Company, 1984). . The Ninth Circuit Court of Appeals has recently determined that the "reasonable person standard" should actually be a "reasonable woman standard." In the case of Ellison v. Brady (1991), the Ninth Circuit stated that in evaluating the hostile environment claim, the perspective of the victim should be considered, rather than some stereotyped notion of acceptable behavior. 551 LEG A L The court pointed out that conduct that many men consider unobjectionable may offend many women, and thus create a hostile working environment. The court also noted that conduct that might be harmless by today's standards may be considered discriminatory and sufficient to create a hostile environment in the future. This is an interesting approach which takes into account the changing values of society in determining what conduct would be appropriate at the workplace. In Ellison, the Court of Appeals held that there was sexual harassment when a male coworker wrote a letter to the female victim in which he expressed his love for her. In a subsequent letter he made repeated references to sex and said he would write again. Because of the severe and pervasive character of the male employee's conduct, the court held that this constituted a sexually hostile environment. However, a hostile environment is more obvious in a case such as EEOC v. Hacienda Hotel (1989). In that case the hotel's male chief of engineering frequently made sexual comments and advances to coworkers, and a female supervisor called her female employees "dogs" and "whores." It is also possible to create a hostile environment if a pervasive pattern of verbal conduct sexually denigrates a coworker. In the case of Jew v. University of Iowa (1990), a faculty member in the College of Medicine at the University of Iowa had a close 552 ISSUES An employer may be liable for the sexually harassing behavior of its employees, even if the employer does not have actual notice of the harassing conduct. professional relationship with the department chairman. A number of her male colleagues began to make comments that suggested a sexual relationship between the two, implying that she had received favorable treatment within the department because of the alleged sexual relationship. Additionally, a number of her colleagues directed sexual epithets to her at work. When she failed to receive a promotion to full professor, she filed a complaint alleging sexual harassment, claiming that a hostile work environment had been created by the behavior of her colleagues. The Federal District Court supported her claim and noted that the University had known of the harassment in question and had failed to take proper remedial action. LIABILITY OF EMPLOYER The courts have recognized that an employer may be liable for the sexually harassing behavior of its employees, even if the employer does not have actual notice of the harassing conduct. The courts have indicated that an employer will always be responsible for "Quid Pro Quo" harassment by its supervisory personnel in a form of strict liability (EEOC, 1990). In a hostile environment claim, the employer would be liable for a supervisor's sexual misconduct if there was not an adequate grievance procedure for raising complaints of sexual harassment, if no policy against sexual harassment existed, or if the employer failed to take corrective action if charges of sexual harassment were made (Campbell v. Kansas State University, 1991). What Should an Employer Do About Sexual Harassment? It is imperative that employers maintain clear policy guidelines which state that sexual harassment is forbidden. Likewise, an effective grievance policy must enable an employee to bring sexual harassment grievances to the attention of the appropriate authorities. In Vinson there was a grievance procedure, but the procedure required that it could be used only if the immediate supervisor was consulted as part of the first step of the grievance process. Since the harasser was AAOHNJOURNAL LEG A L the immediate supervisor of the victim, the Supreme Court determined that this was not an effective grievance policy. However, simply having a mechanism to report sexual harassment is not sufficient. If one claims sexual harassment, there must be appropriate discipline of the harassing employee. Courts have determined that an employer has an affirmative obligation to investigate sexual harassment complaints and to deal with the offending personnel. The absence of sanctions can be viewed as giving tacit support to the harassing behavior (Munford v. James T. Barnes and Company, 1977). In trying to determine what is an appropriate remedy, the courts have said that an employer should take steps that are "reasonably calculated to end the harassment" (Katz v. Dole, 1983). Written warnings, probation, and termination may be appropriate depending on the circumstances. Courts have also held that Title VII does not require employers to fire all harassers (Barrett v. Omaha National Bank, 1984). However, other courts have said that the victim of sexual harassment should not be punished for the conduct of the harasser. Thus, the victim should not have to work in a less desirable location as a result of an employer's effort to remedy sexual harassment. Furthermore, in some cases the mere presence of an employee who engaged in harassing conduct could create a hostile working environment (Ellison). NOVEMBER 1992, VOL. 40, NO. 11 ISSUES It is appropriate for an employer to consult with the victims to get their input about appropriate remedies. While this should not be the sole basis on which an employer makes a decision, the victim's concern should be considered by the employer. Effecting positive change in response to the legal and social recognition of sexual harassment is within the scope of occupational health nursing. On a personal level, the occupational health nurse is in a position of trust and may be the first person with whom an employee discusses their circumstances or discomfort. On a systemic level, the occupational health nurse should participate in establishing a work environment that conforms to the current legal mandates. This can be accomplished by participating in policy development, offering to participate in a grievance process, and providing practical guidelines and information about appropriate and inappropriate conduct in the workplace. CONCLUSION Sexual harassment continues to be a pervasive problem throughout society, and especially in the workplace. Fortunately, recent publicity about such problems has made more people realize that sexual harassment is inappropriate. This has caused many individuals who have previously been unwilling to file complaints to come forward and protest sexual harassment in the workplace. Education of all employees is necessary to make it clear that certain behavior that some individuals may consider "innocent" would constitute a hostile environment for other employees. Finally, it is imperative that employers clearly communicate that sexual harassment is prohibited in the workplace. REFERENCES 29 CFR § 1604.11 (1980 J. 42 U.S.C. § 2000e et seq. (Supp, V 1975). Barnes v. Castle, 561 F.2d 983 m.c. Cir. 1977). Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir. 1984). Campbell V. Kansas State University, 780 F.Supp. 755 CD. Kan. 1991). EEOC Policy Guidance on Current Issues of Sexual Harassment, March 19, 1990. EEOC V. Hacienda Hotel, 881 F.2d 150 (9th Cir. 1989). Ellison V. Brady, 924 F.2d 872 (1991). Ellison V. Brady, F.2d 872 (9th Cir. 1991). Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Jew V. University of Iowa, 749 F.Supp. 946 (S.D. Iowa 1990). Katz v. Dole, 709 F.2d 251 256 (4th Cir. 1983). Lipsett V. University of Puerto Rico, 864 F.2d 881 (Lst Cir. 1988). Meritor Savings Bank, FSB V. Vinson, 477 U.S. 57 (1986). Munford ~. James T. Barnes and Company, 441 F.Supp. 459 (E.D. Mich. 1977). Sexual Harassment on Campus: A Legal Compendium, 2nd ed. (1990). Washington, DC: National Association of College and University Attorneys. Shoop, R.J. (1992). The reasonable woman in a hostile work environment. 72 Ed Law Rep 703. Sling-FloI', V. (1992). The talk of the Ninth: Gender bias. The National Law Journal, August 17, p. 3. Zabkowicz V. Westbend Company, 589 F.Supp. 780, at 784 (E.D. Wis. 1984). 553 Individual Awards Each year, the American Association of Occupational Health Nurses honors individuals for outstanding professional activities that promote occupational health nursing. These accomplishments are recognized during the American Occupational Health Conference. Submissions must be postmarked by Dec. 1. Clinical Two Clinical Awards ($100 each) are presented to individuals whose clinical activity, described in an abstract, demonstrates a significant contribution to the practice of occupational health nursing. Innovative projects, problem-solving approaches and/or practical experiences in promoting and maintaining the health and safety of employees in the workplace are appropriate. Research Two Research Grants, Otis Clapp ($2,000) and Mary Louise Brown ($3,000), will be awarded to registered nurses in the process of planning or early stages of conducting research related to occupational health nursing or the improvement of occupational health. Priority selection will be given to AAOHN members, other attributes being equal. Awards are based on the significant contributions made to the occupational health nursing body of knowledge. Leader-shipThe $1,000 Medique Leadership Award, funded by Medique Products Inc., is given to recognize occupational health nurses with emerging leadership skills and to foster the continuing development of these skills. The award provides financial support to attend the American Occupational Health Conference or the Conference of Presidents. Note: letter of nomination must be submitted to AAOHN by Oct. 1. Academic Scholarship The $2,000 Academic Scholarship, funded by Otis Clapp, Inc., is a memorial honoring the late Charles J. Turcotte. The award is given to an occupational health nurse to be used as financial aid for an academic educational activity. In order of priority, the award winner may use the funds to participate in a master's or doctoral degree program with an emphasis in occupational health, a baccalaureate in nursing degree program, or a field practicum at the AAOHN office. Deadline is December 1. For guidelines, call 1-800-241-8014 or write: AAOHN Individual Awards 50 Lenox Pointe Atlanta, GA 30324-3176 "Note: new criteria for 1992.