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.
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 comprehensive protection of employees against sexual harassment at the workplace has come a long way. According to Siegel, though workplace sexual harassment is basically a practice that has been there for quite a while (actually since the slavery days) it is incorrect to say that such a behavior was originally comprehensively punishable under the law at the very beginning (107). The protection offered to victims of sexual harassment was in most cases scanty under the American Justice System and the only related offense that was punishable under criminal law was rape. Further, a victim of sexual harassment in the form of rape in this case had to prove that such an action was essentially coercive and forceful. Here, the issue of economic coercion did not hence arise. Hence with that in mind, it is correct to say that there was no legislation in place to protect individuals from harassment of a sexual nature prior to the 1964 Civil Rights Act. Previously, the act outlawed the discrimination of individuals based on only nationality, religion, color or even race. However, some elements (most particularly the Southern Conservatives) were intent on ensuring the bill did not see the light of day and in their plans, they added a clause which prohibited discrimination based on sex (Grofman 48). To the Southern Conservatives, outlawing discrimination on the basis of sex (read gender) was so unworkable and they were hence certain that the bill would not sail through. To their surprise however, the bill went through and though it did not particularly take into consideration the harassment (sexual) issue, this was the first momentous move towards addressing the issue, most particularly at the workplace. It was President Lyndon Johnson who signed the Civil Rights of 1964, which was at first proposed by J.F Kennedy prior to his assassination, into law (Gold 77).
Due to the failure of the Act to stem abuses, the need to establish a body that would deal with a wide range of sexual harassment instances was recognized. This is how Equal Employment Opportunity Commission, simply abbreviated as EEOC came into being. For one reason or the other, the agency at first did not execute its mandate in accordance with the laid down provisions regarding discrimination or harassment on the basis of sex. It was only after women's groups sometimes in 1980 exerted significant pressure on the agency that it floated guidelines which defined what could be taken to be sexual harassment. This was done under the instructions of Eleanor Holmes Norton. It was then that sexual harassment was defined as a sexual discrimination form and consequently; the regulations identified that under the Civil Rights Act, workers were essentially protected from the same.
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).
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.