A Sexual Harassment Primer

• Publication year: 2000
• Pages: 33
• Citation: Vol. 29 No. 10 Pg. 33

29 Colo.Law. 33 Colorado Lawyer 2000.

2000, October, Pg. 33. A Sexual Harassment Primer

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33

Vol. 29, No. 10, Pg. 33

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 33]

Hot Topics In Employment Law

A Sexual Harassment Primer
by Kristen L. Mix
C 2000 Kristen L. Mix

Sexual harassment claims continue to dominate civil rights litigation in America and to capture disproportionate media and public attention. Some of the most notorious sexual harassment claims have been asserted against law firms. Every lawyer should possess a working knowledge of this complex area of law. This article discusses the legal distinctions between conduct that constitutes sexual harassment and that which does not, and provides guidelines regarding employer liability—and avoidance of liability—for sexual harassment

BACKGROUND

In late 1999, in an interview with a Sports Illustrated reporter, Major League Baseball player John Rocker used racial and homophobic slurs to describe his teammates, fans New Yorkers, and others.1 His remarks generated much media attention, which ultimately spawned a debate about his First Amendment right of free speech. In a subsequent article in The New York Times, sportswriter Jack Curry quoted Norman Siegel, the Executive Director of the New York Civil Liberties Union: "[T]here are certain limitations [on speech] when it has an adverse impact on a person’s job or creates a hostile work environment." Siegel opined that Major League Baseball’s requirement that Rocker undergo psychological testing "could be construed as adversely affecting his job, and since some teammates have expressed disdain over his comments, [those comments] could be construed as fostering a hostile work environment."2

Aside from highlighting the continuing existence of societal prejudices that gave birth to the civil rights laws, the Rocker story demonstrates how widely the theory and jargon underlying the law of "sexual harassment" have spread since May 1975, when a group called Working Women United first coined the phrase.3 In 1986, the U.S. Supreme Court recognized two different types of gender-based harassment in Meritor Savings Bank v. Vinson:4 (1) quid pro quo harassment, in which a supervisor seeks to condition employment benefits on a subordinate’s grant of sexual favors; and (2) hostile work environment harassment in which supervisors or co-workers engage in conduct that is "sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment."5

The Court essentially abolished the legal distinction between the two previously defined types of sexual harassment in its 1998 decisions in Burlington Industries, Inc. v. Ellerth6 and Faragher v. City of Boca Raton.7 However, the phrase "hostile work environment" has become a twenty-first century cultural hallmark. Today, "hostile work environment" is used liberally to describe every sort of workplace dispute, from garden-variety disagreements among co-workers to gender-oriented assaults. Also, as demonstrated by the Rocker story, the concept of a hostile work environment has been extended to include the workplace effects of offensive remarks about race and sexual preference as well.

Despite popularization of the phrase "hostile work environment," the law of sexual harassment remains remarkably misunderstood outside of the legal profession. The purpose of this article is to provide fundamental, current information about pursuing and defending sexual harassment claims under Title VII.8

What is Sexual Harassment?

Kristen L. Mix, Denver, is a shareholder in the law firm of Vinton Nissler Allen & Vellone, P.C.

Both the U.S. Supreme Court and the Equal Employment Opportunity Commission ("EEOC") have identified types of conduct that can constitute "sexual harassment," including the following: "repeated boorish and offensive remarks and gestures;"9 and "unwelcome sexual advances, requests for sexual favors [and] offensive jokes and innuendoes."10 However, whether such conduct actually rises to the level of sexual harassment depends on its "relative severity or pervasiveness" in the workplace at issue, which is "quintessentially a question of fact."11 The Tenth Circuit Court of Appeals has made it clear that courts must "examine the specific context in which the conduct occurred on a case-by-case basis."12

Moreover, even "facially neutral abusive conduct" can assist a plaintiff in establishing a "hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct."13 Thus, the conduct of an abusive manager...