Workplace sexual harassment: history, law, and prevention policies

Sexual Harassment

It is important to note that apart from serving as a centre for economic gains, the workplace also serves as a second home as well as a critical social network. Just like any other social network, the workplace also tends to have a distinctive culture which in some cases could be a field of gender-biased traditional beliefs. It is these gender-biased traditional beliefs that at times expose individuals (typically non-heterosexuals and women) to both marginalization as well as abuse where such individuals are more often than not viewed as sexual objects in addition to being regarded as inferior. In this text, I concern myself with workplace sexual harassment.

According to Konrad, sexual harassment is essentially sexual attention that is largely unwarranted. In this case, the sexual harasser should be aware that such attention is unwanted (54). Apart from sexual harassment being an offense under the law, most states already have in place Human Rights Codes that denounce sexual harassment most specifically at the workplace. For instance, the Human rights Code of Ontario spells that each and every individual who happens to be employed by an employer ought to be subjected to equal treatment either from that particular employer, or any other individual or firm that acts as the employer's agent, or by any other individual who is employed by that employer, without any form of discrimination in regard to sex (Konrad 54). It is important to also note that in the recent past, many organizations have put in place clear and concise sexual harassment policies in an attempt to ensure that incidences involving sexual harassment do not occur in the workplace.

History

According to Siegel, sexual harassment can be traced back to the Industrial Revolution and slavery period (29). During this era, those who suffered sexual coercion were largely African-American women as well as those who worked as domestic servants. However, it is important to note that there are studies that trace sexual harassment to the industrial revolution period. Amongst those who document the victimization of women during the Industrial Revolution include Upton Sinclair and Helen Campbell in their respective accounts, The Jungle (1905) and Women Wage Workers (1887). In these accounts, factories provided fertile grounds for sexual harassers to victimize women and this practice was most specifically evident in meat-packing as well as garment industries (Siegel 36).

Essentially, gender roles were dichotomized by the capitalist market economies which were in turn strengthened by the Industrial Revolution. During this period, women were perceived as competitors at the workplace and for that, their employment conditions were made difficult by their male counterparts. Therefore, to avoid reduced wages and possible loss of employment which could end up complicating matters for their families, women suffered relatively silently in the hands of opportunistic sexual harassers.

The Law that Governs Sexual Harassment

As it has already been indicated elsewhere in this text, both federal as well as state laws protect employees and other individuals from any unwarranted aggression which can be taken to be sexual. According to Boland, the federal law governing sexual harassment is founded on the 1964 U.S. Civil Rights Act Title VII (43). Here, of importance is that this law takes into consideration those employers who have 15 employees and above (Myers 269). State anti-discrimination laws (similar) protect all those other employees who do not fall into the 15 employees and above category. It can also be noted that under this law, a claim against an employer can be sustained for instances involving same-sex harassment. However, when it comes to state laws, there are some variations in regard to same-sex sexual harassment.

Under both federal and state law, sexual harassment can be categorized into two. That is, 'hostile work environment harassment' and secondly, 'quid pro quo harassment' (Barth and Hayes 203). When it comes to 'hostile work environment harassment,' harassment of a sexual nature can be taken to be that which interferes unreasonably with the work performance of an employee or creates a work environment which is essentially offensive or hostile. On the other hand, 'quid pro quo harassment' concerns itself with scenarios where an employee must be tolerant to harassment of a sexual nature so as to secure employment, secure a promotion or a pay hike or even access occupational benefits. However, under 'hostile work environment harassment,' there are a number of factors which are taken to consideration in charting the hostility of the work environment. These include;

The conduct's nature i.e. physical, verbal

The frequency of occurrence

The conduct's nature i.e. either patently offensive or hostile

The relationship between the victim and the harasser (alleged) i.e. supervisor or co-worker

The number of those involved in the harassment perpetration

The number of people who were targeted by the alleged harassment

In conclusion, while an isolated incidence could be considered enough to sustain a claim of sexual harassment 'quid pro quo;' sustaining a 'hostile work environment' harassment of a sexual nature claim calls for a demonstration of a pattern of conduct (Shilling 35-14, 35-15).

Enforcement

For purposes of bringing an action for harassment which could be taken to be sexual, it is crucial that there be an establishment by the plaintiff that;

In the plaintiffs view, the conduct was essentially offensive as well as abusive and hostile

Any other reasonable individual in the plaintiffs shoes would have found such conduct to be offensive, abusive or hostile

It should be noted that for purposes of enforcement, the plaintiff need not be a sexual harassment victim. Further, the complainant should prior to filing a sexual harassment suit file a complainant with an administrative agency in regard to the conduct. The EEOC mentioned earlier on in the text is the administrative agency with which the complaint in regard to conduct should initially be filed. This is more so the case when the complaint is federal. Under state law, there are a number of local as well as state agencies where complaints must first be filled. In some instances, it is the agency which takes upon the case and prosecutes on behalf of the plaintiff. However, a plaintiff can file a lawsuit against an agency if it fails to act on his behalf and secondly, if the said agency fails to institute any meaningful action within the allocated time frame.

Legal History: A Summary of Recent Court Cases

Crawford v. Metropolitan Government of Nashville

In the Crawford v. Metropolitan Government of Nashville (2008) case, it was held that in regard to the provisions outlawing anti-reiteration, their application was only to the extent of those who had filed complaints with the relevant agencies (Miller, Cross and Jentz 475). In this particular case, Crawford during the course of a normal inquiry alluded to the fact that her supervisor, Hughes, had harassed her sexually at an earlier date. However, she didn't institute an official complaint in this regard at the time of the harassment.

English v Sanderson Blinds ltd

In this particular case, it was held that in cases involving sexual harassment, the sexual orientation of the plaintiff was irrelevant. Here, Mr. English had been exposed to mockery (homophobic) on his being gay and in the final judgment that was delivered by the court of appeal; the ruling judge held that the insult to the dignity of Mr. English was enough to sustain a harassment case whether he was gay or not (Scrope Bernett 345).

Hocevar v. Purdue Fredrick Co.

This is one of the most controversial rulings in regard to sexual harassment. Here, it was held that a sexual harassment claim could not be supported by a complaint in regard to the use of language which is largely taken to be foul.

Place V Abbott Labs

In this case, it was held that a sexual harassment case could not be sustained on claims that leaned largely on soured romance. The U.S. court of appeal held that though quite a number of sexual harassment cases arose from instances of soured office romances; the same could not be classified under sexual harassment. A case that also upheld a similar decision was that of Succar v. Dade County (2000).

Stuart v. GMC

This is a good example of a case to demonstrate that employers can in some instances be responsible for the conduct of their non-employees. In this particular case, the employer was prevailed upon by the employee as the employer had failed to demonstrate that he had instituted reasonable steps to investigate the claims of sexual harassment an employee had submitted. The employer in this case was held liable for both the harassment endured by the plaintiff in regard to co-workers as well as non-employees.

Conclusion / Opinion

From a human resources point-of-view, the law in the recent past has become largely effective in so far as dealing with instances of sexual harassment, most specifically at the workplace, is concerned. Most specifically, the provisions which dictate the particular avenues to be followed by an individual who feels that he or she is subject to sexual harassment allow for the effective handling of sexual harassment from the point-of-view of human resource management. For instance, there are express directions that the complainant should also utilize the employer's grievance handling mechanism in place and it is only when such mechanisms are ineffective or obstructed that such a complainant or victim should seek the intervention of relevant agencies including EEOC.