The Employer’s Advantage in Sexual Harassment Cases

• Author: Bonnie G. Mani
• Published date: 01 March 2004
• Date: 01 March 2004
• DOI: http://doi.org/10.1177/0734371X03259265
• Subject Matter: Journal Article

REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / March 2004
Mani / SEXUAL HARASSMENT CASES
ARTICLE
10.1177/0734371X03259265
The Employer’s Advantage in
Sexual Harassment Cases:
How the Courts Have Discouraged
the Victims of Sexual Harassment
BONNIE G. MANI
East Carolina University
Why does sexual harassment continue to be a problem in the workplace? Do
employers have an advantage in the courts when victims file complaints? This
article explores these questions by analyzing court cases, an interview with a liti-
gant, Equal Employment Opportunity Commission statistics, and Merit Systems
Protection Board studies. The results of this analysis suggest practical strategies
for improving compliance with Title VII of the Civil Rights Act of 1964.
Although complaint proces es and litigation might serve as deterrents, employers
have an advantage so victims have been reluctant to file formal complaints.
Women have a disadvantage in the courts because few women serve on the bench,
however the number of female judges is likely to increase in the future. Also, agen-
cies need to open and legitimize the proces by establishing informal as well as for-
mal complaint processes and networks of impartial counselors and investigators
who are qualified to hear complaints.
Keywords: human resource management; sexual harassment; sex discrimina-
tion; Title VII; women in public administration
In 1979, The Ofice of Personnel Management (OPM) defined sexual
harassmentas“deliberateorrepeatedunsolicitedverbalcomments,gestures,
or physical contact of a sexual nature which is unwelcome” (Levinson, John-
son, & Devaney, 1988). One year later, the Equal Employment Opportunity
Commission (EEOC) refined this definition; sexual harassment is a form of
unlawful sex discrimination that creates “an intimidating, hostile, or offensive
working environment” (Levinson et al., 1988). Federal district courts and cir-
cuit courts of appeals agreed that employers could be held liable when their
employees experienced quid pro quo sexual harassment. Moreover, in Meritor
Savings Bank, Vinson et al. (1986), an employer was held liable for hostile
Review of Public Personnel Administration, Vol. 24, No. 1 March 2004 41-69
DOI: 10.1177/0734371X03259265
© 2004 Sage Publications
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REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / March 2004
environment sexual harassment. Because noneconomic injuries are covered
by Title VII, plaintiff Michelle Vinson’s hostile environment sexual harass-
ment was actionable even though she suffered no tangible loss (Hauck &
Pearce, 1987; Meritor Savings Bank v. Vinson et al., 1986).
PREVALENCE
The EEOC reports charges of sexual harassment filed with that agency
and with state and local fair employment practices agencies that agree to
share their data with the Commission. Employees who allege sexual harass-
ment must file charges with the EEOC or state and local agencies if they are
dissatisfied with the way the complaint is resolved by their employer (thus
all complaints are not reported to the EEOC and included in their report of
sexual harassment charges). The EEOC reviews the complaint and decides
whether to issue a right-to-sue letter.1 According to the Commission,
15,475 charges of sexual harassment were filed in 2001 (see Table 1). Only
13.7% of the charges were filed by men. The number of cases resolved was
16,383 (this total includes charges filed in a prior year and cases transferred
from state and local agencies). In almost 71% of cases resolved in 2001, the
case was closed because the EEOC found no reasonable cause to believe that
discrimination occurred or the case was closed for administrative reasons
(e.g., the agency could not reach the charging party). Less than 19% of these
cases were resolved with benefits to the charging party (settlements and
withdrawal with benefits). The EEOC found reasonable cause in less than
11% of all cases filed. In summary, in 2001 the EEOC resolved cases in
favor of charging parties less than 30% of the time and complainants
received benefits in less than 20% of these cases (U.S. Equal Employment
Opportunity Commission, 2002b).
In addition to EEOC statistics, the prevalence of sexual harassment is
evident in self-reports that federal government employees have given to the
Merit Systems Protection Board (MSPB). In 1988, the MSPB reported the
results of a 1987 survey of federal employees. Of al female respondents,
42% and 14% of the male respondents reported that they had experienced
some kind of unwanted sexual attention. Offenders were more often
coworkers than supervisors. The most common offenses were teasing,
jokes, remarks, or questions of a sexual nature. The least frequently
reported offenses were rape or assault, actual or attempted. In addition,
employees were asked if they had experienced uninvited

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Table 1: Sexual Harassment Charges Filed with EEOC and Fair Employment
Practices Agencies: 2001
Complaints received
15,475
Percentage of charges filed by men
13.7
Complaints resolved
16,383
Type of resolution
Settlement
1,568
Withdrawal with benefits
1,454
Administrative closures
(e.g., could not reach complainant)
4,293
No reasonable cause
7,309
Reasonable cause
1,746
Successful conciliation
551
Unsuccessful conciliation
1,195
Merit resolutions
(evidence of discrimination)
4,768
Source: U.S. Equal Employment Opportunity Commission, 2002b.
• letters, telephone calls, or materials of a sexual nature
• deliberate touching, leaning over, pinching, or cornering
• sexually suggestive gestures or looks
• pressure for sexual favors
• pressure for dates (Levinson et al., 1988).
In 1994, the MSPB followed up. Another 13,000 surveys were sent to
federal government employees, and 61% of them responded. There was lit-
tle change in the prevalence of sexual harassment. Forty-four percent of
women and 19% of men reported that they had received some type of
unwanted sexual attention between 1992 and 1994. The MSPB speculated
that the prevalence of this form of sex discrimination is likely to be similar in
the private sector and in other organizations (Erdreich, Slavet, & Amador,
1994).
This is a costly problem. More than 200,000 employment discrimina-
tion cases are filed each year, and the number increases about 23% every
year. Each suit costs about $100,000 for each side to litigate (Fair, 2000).
The Civil Rights Act of 1991 limits compensatory damages that an
employer may have to pay, however, this could be another significant cost.
If a plaintiff is awarded compensatory damages, employers with fewer than
101 employees would have to pay up to $50,000 and employers with more
than 500 employees would have to pay up to $300,000 (Civil Rights Act of

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REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / March 2004
1991). According to the MSPB, sexual harassment cost the government
$267 mil ion between 1985 and 1987. Between 1992 and 1994, the cost
increased to $327 mil ion (Erdreich, Slavet, & Amador, 1994; Levinson
et al., 1988). How can such costs be reduced? If organizations have formal
policies, train their supervisors and employees, discipline harassers, and
respect victims, then the prevalence and costs of sexual harassment should
decrease.
Organizations cannot discipline harassers and stop harassment if victims
do not complain. Only 6% of the federal employees who reported that they
had experienced sexual harassment said that they filed formal grievances or
complaints (Erdreich et al., 1994). Of the 94% of employees who experi-
enced sexual harassment, it seems likely that some did not complain
because they did not consider the harassing behavior to be serious. For
example, many employees may be willing to tolerate the most common
forms of sexual harassment (teasing, jokes, remarks, or questions of a sexual
nature) so they do not file a complaint. However, it seems very likely that
some percentage of those who do not file complaints endure much more
serious harassment.
WORKPLACE POLICY
Theoretically, sexual harassment is less prevalent in organizations that
develop and enforce effective antiharassment policies. In addition, employ-
ers that implement policies are less likely to be liable if an employee does file
a sexual harassment complaint. No single policy will meet the needs of every
organization, however, all policies should include the following (Burke &
Little, 2000; Eberhardt, Moser, & McFadden, 1999; Fair, 2000; Feery,
1994; Fowler, 1996; Frierson, 1989; Gunter & Rattray, 1998; Hatlevig,
1995; Hoyman & Stein, 1998; Kaser, George, & LaBel a, 1995; Kobata,
1995; Koen, 1990; Laabs, 1995a, 1995b; Marshal , 2000; Novak, 2001;
Parliman & Kel y, 1995; Robinson, Al en, Franklin, & Duhon, 1993; Rob-
inson, Frink, Reithel, & Franklin, 1998; Rosel , Mil er, & Barber, 1995;
Solomon & Stuart, 1991; Spann, 1990; Starkman, 1999; Stringer, Remick,
Salisbury, & Ginorio, 1990; Terpstra, 1993):
• organizational commitment to a harassment-free workplace
• definition of sexual harassment and reference to relevant public policies
• examples of the most severe, severe, and less severe sexual harassment
• coverage, that is, supervisors, coworkers, and vendors; men and women may
be charged with sexual harassment

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• managers’ and supervisors’ responsibilities for implementing and enforcing
the policy
• encouragement so victims of sexual harassment will report incidents
• formal and informal complaint procedures
• assurance of confidentiality
•...