Sexual harassment can be legally defined as "verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes" ("sexual harassment," 2012). If a person in authority such as a boss, mentor, or official is found pressurizing a person holding an inferior position with the intention of obtaining sexual favors, it is typified as sexual harassment. In most cases, sexually unambiguous or evocative behavior by male colleagues may be intended to make a work situation difficult for a recently appointed female. The main motive of the harassers may be sheer resentment to female admission into a male preserve ("sexual harassment," 2012).
Difference between Sexual Harassment and Gender Discrimination
Harassment is behavior that is unessential for the performance of an administrative or managerial job, but in its place outside the extent of obligatory work responsibilities. Harassment is, thus, the conduct apparently slotted in for personal satisfaction, fulfillment and indulgence because of malice or intolerance, or for other private reasons (Broderick, 2011). As far as sexual harassment is concerned, it is the behavior that demonstrates unnecessary sexual comments or exploitation, unwanted sexual proposals, unpleasant and disgusting signals and unwanted sexual contact ("Sex Discrimination and," 2005).
On the other hand, discrimination crop ups out of the performance of essential staff supervision duties, such as appointing, dismissing, and awarding promotion. Gender discrimination refers to unfairness and bigotry by administration in personnel verdicts based on a worker's sex (Broderick, 2011).
"Quid Pro Quo" Sexual Harassment
Quid Pro Quo occurs when an employee is asked, either in a roundabout way or straightforwardly, to surrender to a sexual advance in exchange for some advantage at work for instance a promotion or salary advance (Hartmus & Niblock, 2000).
Hostile Environment Sexual Harassment
The fundamental nature of hostile environment harassment is that the member of staff is "subjected to unwelcome, offensive, sexually-related conduct at work that is continuous and pervasive, and that interferes with the individual's job performance, or that creates an intimidating, hostile, or offensive working environment" (Hartmus & Niblock, 2000). Anyone can be claimed to be the sole reason behind hostile environment harassment such as a colleague, a manager related to another area, a representative of the company, or even an individual outside the working staff. Hostile environment harassment not only involves sexual advances, but also sexual behavior that is not inevitably besieged at the complaining employee, but has an effect on the working conditions of the accuser (Hartmus & Niblock, 2000). In simple words, such kind of harassment intimidates the working environment as a result of sexual stares and gazes, behaviors, snaps, comments, jokes, terrorization and/or bullying (Gross, 2008).
Factors that Determine Sexual Harassment Behavior
There are a number of behaviors that help in the determination of sexual harassment. An evocative and indicative behavior suggests that the individual is involved in sexual harassment. Similarly, gazing, intent looks, grinning or signaling in a sexual way indicates the sexual harassment. Sexual, indecent and filthy jokes or intimations also make it easy to determine whether a person is involved in harassing the others sexually. In some cases, sexual harassment behavior is verified when a person continues with behaviors even after the clearance from the victim that he/she is not interested. The person committing sexual harassment continues to propose sexually, send invitations, make contact via phone or ask for sexual support. In addition to this, sexual or physical contact that includes touching, brushing, stroking, spanking, kissing or squeezing also determines sexual harassment behavior. A person harassing the other person sexually also passes sexual or gendered comments. he/she bullies and teases the affected party. If a person asks disturbing questions about an individual's private life including marital status, sexual turn-ons and orientation, probity or physical appearance, it is also a major feature of the sexual harassment behavior. Moreover, if sexually open or nasty material is exhibited in a public place or placed in the work area of an individual, it crystal-clearly portrays the sexually annoying behavior. If a staff member views pornographic material at his/her work-station, such an action would also be categorized as a sexually harassing behavior ("Sex-Based Discrimination,").
Standard by which "Unreasonable" Behavior is Determined
It is not a difficult task to determine unreasonable behavior at workplace. The most fundamental standard to judge it is bullying. A person would be plainly labeled as having an unreasonable behavior if he/she bullies his/her colleague(s) creating a risk for health and safety. Even a single incident of unreasonable behavior can result in a risk to another person's physical condition and well-being. It doesn't matter whether bullying in intentional or unintentional; what matters is that bullying is an unreasonable standardized behavior that can result in serious work-related health and safety issue. Bullying can cause stress to anyone whether he/she is bullied or no. Even a person working in an atmosphere of bullying can have serious psychological injuries like apprehension and despair and can also have indirect physical injuries. In simple words, it means that an improper, unreasonable or dysfunctional behavior can have solemn consequences on output, efficiency, job satisfaction and on the physical and mental safety of employees.
Severe or Pervasive Situations
The behavior of the harasser is required to be either severe or pervasive in order to categorize his/her conduct as sexual harassment. A single unpleasant occurrence is most likely not sexual harassment unless it is severe. For instance, a single event of rape or endeavored rape would in all probability be considered as sexual harassment. Similarly, a single redundant date request or a sexually indicative remark might be offensive and improper; it may not be sexual harassment. On the other hand, several somewhat insignificant disconnected incidents may be combined to sexual harassment, in case the working environment is affected by these occurrences. Thus, in order to determine the pervasive conduct, it is exceedingly important to find out the frequency of the incidents, the duration of the harassment from the beginning and the number of other people who are also harassed sexually.
Importance of a Valid Written Policy Against Sexual Harassment
A valid written policy against sexual harassment is undoubtedly important for companies as it can help the employers to reduce their risk of legal responsibility in sexual harassment claims. This is the reason why a core set of elements is indispensable to a first-class sexual harassment guiding principle. Such a policy must contain a strongly-worded "zero tolerance" proclamation on sexual harassment from higher administration, together with exact characterization of what form of behavior represents sexual harassment. Moreover, it must also contain "an effective and enforced procedure in place to handle sexual harassment complaints and impose sanctions against offenders" (Hartmus & Niblock, 2000). It is also important for the policy to be clearly in black and white and widely circulated to all employees (Hartmus & Niblock, 2000).
Burlington Industries, Inc. v Ellerth 524 U.S. 742 (1998)
A. The Facts of the Case
Kimberly B. Ellerth was an employee of Burlington Industries. However, after working there for fifteen months, she quit because she purportedly experienced sexual harassment by Ted Slowik, one of her superiors. Regardless of the fact that she rejected Slowik's sexual advances, she was not put up with any substantial vengeance. If truth be told, she was given a promotion. Furthermore, at the same time as Ellerth continued to be quiet about Slowik's behavior even though she knew about Burlington's policy against sexual harassment, she dragged the company to the court claiming that the company forced her beneficial release ("Burlington Industries, Inc.," 2012).
B. The Issue in the Case
The question put before the court was "Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against…