An Overview of the Law of Sexual Harassment
| Publication year | 1983 |
| Pages | 1459 |
| Citation | Vol. 12 No. 9 Pg. 1459 |
1983, September, Pg. 1459. An Overview of the Law of Sexual Harassment
Although a cause of action under Title VII of the 1964 Civil Rights Act for sexual harassment is now well recognized, only seven years ago federal district courts refused to recognize such claims out of fear that the floodgates of litigation would be opened:
Federal courts have now developed a fairly cohesive body of law governing sexual harassment. Whether the floodgates have been opened remains to be seen, but there has been a sharp increase in the number of sexual harassment lawsuitsIf the plaintiff's view were to prevail, no superior could, prudently, attempt to open a social dialogue with any subordinate of either sex. An invitation to dinner could become an invitation to a federal lawsuit if a once harmonious relationship turned sour at some later time.(fn1)
This article discusses the elements of the law of sexual harassment that are essential for a practitioner to be an effective advocate. As an advocate, the practitioner must understand the elements of a prima facie case of sexual harassment, defenses to such a case, the remedies available, the parties who may be held responsible and the behavior that constitutes sexual harassment.(fn2)
Equal Employment Opportunity Commission ("EEOC") guidelines define sexual harassment broadly as "[u]nwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature" when submission to such conduct is explicitly or implicitly a term or condition of an individual's employment, is used as a basis for employment decisions affecting the individual or where such conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment.(fn3)
According to the EEOC guidelines, an employer will be held responsible for the acts of its agents and of supervisory employees regardless of whether the acts were authorized or forbidden or whether the employer knew or should have known of their occurrence.(fn4) The employer will also be held responsible for the acts of co-workers if it knows or should have known of the conduct, unless it can show that it took immediate and appropriate action to end the conduct. The guidelines also apply to employer responsibility for the acts of non-employees.(fn5)
Case law from various jurisdictions helps to clarify the broad definition of "sexual harassment" stated in the guidelines. A mere flirtation or an isolated incident has been held not to constitute sexual harassment.(fn6) The use of profanity in a securities trading area, without more, did not constitute sexual harassment.(fn7) Moreover, where a plaintiff welcomes and encourages misconduct through his/her own sexual misconduct, a court may find that there is no sexual harassment.(fn8) However, requiring employees to wear sexually suggestive or revealing costumes, homosexual advances by a supervisor, and degradation by way of verbal sexual advances, lewd sexual comments and gestures and a degrading cartoon have all been found to constitute sexual harassment.(fn9) Each case is examined by the court on its own facts and determinations made vary from case to case.
Section 703(a)(1) of Title VII provides:
...it shall be an unlawful employment practice for an employer...to discharge any individual...or otherwise to discriminate against any individual with respect to...terms, conditions, or privileges of employment because of such individual's sex. . . .(fn10)
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