Recent Developments in the Law of Sexual Harassment
| Publication year | 1989 |
| Pages | 263 |
1989, February, Pg. 263. Recent Developments in the Law of Sexual Harassment
The recognition of a claim for sexual harassment creating a hostile or abusive work environment in Meritor Savings Bank v. Vinson(fn1) provided an affirmative answer to the question of whether a plaintiff can establish a violation of Title VII,(fn2) absent an adverse economic impact on the plaintiff's employment.(fn3) However, Vinson spawned an array of perplexing questions for both employers and plaintiffs. In the two years since Vinson, courts have begun to define the parameters of the Vinson rule by determining the nature and pervasiveness of conduct necessary to constitute sexual harassment, and by establishing standards for assessing employer liability.
This article examines the development of the hostile environment sexual harassment claim in the post-Vinson era and discusses cases in which the employer has had to defend itself against such charges.
The hostile environment claim requires a showing of a pattern of unwanted sexual advances that is so severe or pervasive as to alter the conditions of employment and create an abusive working environment.(fn4) The Vinson Court adopted the Equal Employment Opportunity Commission's ("EEOC") definition of sexual harassment. This includes conduct that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment," as well as conduct that conditions job advancement on an employee's response to sexual advances.(fn5) The EEOC guidelines further provide that the trier of fact must look at the record as a whole in determining whether sexual harassment occurred. The Vinson Court noted that the claimant's "sexually provocative speech or dress" is a part of this "totality of the circumstances" examination.(fn6)
However, the rule set forth in Vinson is difficult to apply, particularly in view of the fact that sexual advances need only be "unwelcome," not involuntary, in order to be actionable. In fact, the Vinson plaintiff had sexual intercourse with her supervisor many times, and at least some instances were admittedly voluntary.(fn7)
In implementing Vinson, the court in Rabidue v. Osceola Refining Co.(fn8) formulated a two-step test involving both objective and subjective factors. Rabidue presents the most comprehensive guidance to lower courts assessing hostile environment claims. The test involving objective factors requires the trier of fact to adopt the perspective of a reasonable person's reaction to the environment. If a reasonable person's work performance and psychological well-being would not be affected, the plaintiff cannot win a hostile environment claim, even if that person was so affected.(fn9) The defendant might consider expert testimony on this issue.
Regarding subjective factors, if the trier of fact finds that a reasonable person would have been affected adversely by the conduct at issue, it must proceed to determine whether the individual plaintiff actually was so affected.(fn10) Here, expert testimony for the plaintiff from a psychiatrist or psychologist could be significant. To the extent that severity of the conduct is measured by its impact on the claimant's psychological well-being, depositions of the claimant's co-workers and relatives are critical.(fn11)
Rabidue lists the following factors to be considered in evaluating the professional and psychological impairment of the employee: the nature of the alleged harassment; the background and experience of the plaintiff; the "lexicon of obscenity" that pervaded the environment of the workplace before and after the plaintiff arrived; and the reasonable expectation of the plaintiff upon voluntarily entering that environment.
The Rabidue Court acknowledged that in some work environments, humor and language tend to be vulgar. It found that gross obscenities by the plaintiff's managerial peers and lewd posters in work areas would not offend a reasonable person in a society condoning erotica
on the newsstands and on prime-time television.(fn12) This analysis suggests that an employee may have to accept some sexually offensive conduct, although a contrary rule applies to racially offensive conduct.(fn13)
Because pervasiveness depends on the facts of each individual case, no absolute guidelines exist for assessing the severity of harassing conduct. Conduct predominantly verbal or merely suggestive is less likely to create a hostile environment than actions more overtly sexual or openly threatening. One or two isolated incidents of improper conduct probably do not support a hostile environment claim. Conduct not directed...
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