In the wake of the Jones v. Clinton case, there has been a renewed interest in sexual harassment issues, particularly the chaotic case law in this important field of practice. The author urges the social work profession to resurrect its commitment to achieving social justice by participating in the current efforts to unravel the complexities of sexual harassment law. Toward this end, the article presents an analysis of the concept of sexual harassment by providing an overview of the legal issues and case law to highlight the statutory questions that have left the judicial system confounded by the difficulties of practical application of the law. Furthermore, the article deals with the relevance of this topic for the professional mission and suggests the utility of some conceptual frameworks and key concepts that might help social workers to address the clinical, administrative, and advocacy concerns in this substantive area.
Key words: advocacy; feminist theory; law; sexual harassment; social work practice
The furor surrounding U.S. District Court Judge Susan Webber Wright's dismissal of Paula Corbin Jones's sexual harassment suit against President Clinton has prevented the discourse in this important legal area from proceeding beyond these specific personalities. On rare occasions, the suit has been examined in its broader context to illustrate the "chaotic case law in this important field of practice" (Greenhouse, 1998a, p. A11). Nonetheless, it cannot be denied that public interest in the complexities of applying sexual harassment law has grown in the wake of the Paula Jones suit. Otherwise, there was very little publicity given to the fact that since 1991, "juries have returned well over 500 verdicts on sexual harassment"--decisions that have often contradicted one another (Cloud, 1998, p. 49). Recently this was summarized succinctly in a statement attributed to Turley when he said, "Sexual harassment victims are by far the victims with the most lasting injury and the most tentative ability to pursue the li tigation" (Mansnerus, 1998, p. 16 WK).
This article presents an analysis of the concept of sexual harassment and its legal permutations to demonstrate the complexity of this issue, which at times has been lost in the adversarial politics surrounding Jones v. Clinton. More important, the legal review uncovers some compelling reasons why social workers should be active participants in the emerging debate on sexual harassment. Specifically, the background information presents an overview of the legal issues and case law to highlight the statutory questions that have contributed to the law's intricacies. I suggest that social work--the "female dominated profession"--live up to its name and confront the challenge of sexual harassment, in which 90 percent of all plaintiffs and the predominance of victims are women (Cloud, 1998). To facilitate this initiative, this article delineates the relevance of this topic for the professional mission and explores the utility of some conceptual frameworks and key concepts that might help social workers to address t he clinical, administrative, and advocacy concerns in this substantive area.
The wording of the sexual harassment law and the level of evidence required to prove a case has left the judicial system confounded by the difficulties of practical application of the law. Although the statute does not include the term "sexual harassment," Title VII of the Civil Rights Act of 1964 (P.L. 98-433) prohibits employment discrimination on the basis of gender. The Supreme Court has interpreted sexual harassment as a form of sex discrimination. In 1976 a Federal District Court in Williams v. Saxbe "first granted a right of action for sexual harassment" (Hill, 1998, p. A23). Individuals in educational settings could turn to Title IX of the Education Amendments of 1972 (P.L. 92-318), which prohibits sex discrimination by educational institutions that receive federal money. Earlier Supreme Court decisions have established that the law's reference to sex discrimination covers sexual harassment, including the right to sue for damages.
It is important to clarify that the Paula Jones case was brought as a job discrimination sexual harassment claim but not under Title VII. Because of the delay in filing, the Paula Jones case was filed under state personal injury law [42 U.S.C. [ss]1983 and 42 U.S.C. [ss]1985(3)]. "The Equal Protection Clause of the Fourteenth Amendment confers a right to be free from gender discrimination. Applying this precept, courts have found that intentional sexual harassment of employees by individuals acting under color of state law violates the Fourteenth Amendment and is actionable under Section 1983" ("Testing of a President," 1998, p. A18). Section 1985(3) involves a civil rights conspiracy claim; a plaintiff has to prove that such a conspiracy resulted in a deprivation of her or his constitutional rights. The third claim by Paula Jones was filed under a state law that recognizes a claim of intentional infliction of emotional distress or outrage based on sexual harassment. All these claims are judged under the sta ndards developed in similar Title VII litigation, which the courts have divided into two separate categories of harassment.
Quid Pro Quo Cases. In quid pro quo cases, harassment is said to occur when an employee's job is made dependant on performing sexual favors. Here, a mere threat or promise of job-related harm for failing to comply with sexual demands does not constitute quid pro quo sexual harassment. In addition, a plaintiff has to prove that the refusal to submit to requests for sexual favors resulted in a tangible job detriment. Quid pro quo harassment was ruled as a violation of Title VII by the U.S. Court of Appeals for the District of Columbia (Cloud, 1998).
Hostile Work Environment Cases. In hostile work environment cases, speech or conduct in itself is said to create a "hostile environment," and such an environment violates the Civil Rights Act even when there is no quid pro quo. In short, it is not necessary to prove economic or tangible job detriment. However, the plaintiff has to establish that the behavior was "sufficiently severe or pervasive to alter the conditions of the victim's employment." Moreover, the behavior must be "unwelcome" sexual harassment based on gender status, and the victim has to demonstrate that she found the conduct offensive. In summary, the Supreme Court, in its 1986 judgment on Meritor Savings Bank v. Vinson said that the question was how a supposedly hostile environment would "reasonably be perceived." This decision threw open a huge new arena for sexual harassment claims, because it was based on a looser principle of hostile environment compared with quid pro quo.
Although some of the requirements for meeting these definitions have changed, I have addressed these statutes in this article as interpreted before June 26, 1998, when the Supreme Court handed down several decisions. This article addresses changes in case law that came out of these Supreme Court decisions in more detail later.
Effect of Supreme Court 1998 Decisions on Case Law
Case law involves legal principles enunciated and embodied in judicial decisions resulting from law suits derived from particular areas of law as they apply to individual cases. The importance of case law for the present discussion is the fact that it is a dynamic and constantly developing system. Thus, it provides contemporary, valid precedent cases in fields such as sexual harassment. Moreover, when the case law is based on Supreme Court decisions, it is binding on everyone.
In the term that ended in June 1998, the Supreme Court ruled in four sexual harassment cases. The judgment in Burlington Industries Inc. v. Ellerth (1998) was scrutinized closely because it illustrated an artificial dichotomy that had developed between quid pro quo and hostile environment sexual harassment. A more compelling reason for giving publicity to this case was its potential effect on the outcome of Paula Jones's appeal of her law suit against President Clinton--a nonissue, as it turned out, because Jones reached an out of court settlement with Clinton.
Ellerth's claim was framed as a hostile work environment complaint. However, the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled that there was a quid pro quo "component" to the hostile environment. Ellerth's suit was based on the fact that there was a demand for sexual favors by a supervisor from a lower-ranking employee, but Ellerth did not submit to the demands or suffer any tangible job detriment as a result of the refusal, and in fact received a promotion (a similar situation to that of Ms. Jones). Thus, the Ellerth case posed a major question for the court of how the law should treat a supervisor's "unfulfilled threat," where the harm to the employee seemed more in the character of a hostile work environment than job detriment. Moreover, in its judgment in the Ellerth suit, the district court found evidence of multiple incidents that would prove more severe and pervasive harassment (more typical of hostile environment claims) than a quid pro quo claim where a single threat could amount t o quid pro quo harassment. In addition, the Supreme Court justices were concerned about the ambiguity in classifying Ellerth, because in quid pro quo cases lower courts usually had held employers strictly liable, compared with hostile environment suits in which the employer was not automatically liable for the misdeeds of supervisors (Biscupic, 1998a; Greenhouse, 1998c). In the latter situation, lower courts have been deeply divided, because application of the standard has been made difficult by its...