Sexual Harassment in the Workplace: Liability and Resolution

Liability for Intentional and Unintentional Sexual Harassment

Sexual harassment is defined as any verbal or physical behavior with sexual connotations that brings discomfort or degrades the work environment, where the aggressor takes advantage of his or her position or repeated involvement to impose such behavior on another individual against his or her will, causing disadvantage to that individual.

Sexual harassment includes any unwelcome, unsolicited, and non-reciprocated behavior that constitutes deliberate or unintentional verbal or physical conduct of a sexual nature (Gibson, 1995). It may be an isolated incident or a series of many incidents. The distress that results from sexual harassment may be the same whether the conduct was intentional or unintentional. Therefore, both employers and employees should be held liable for both intentional and unintentional sexual harassment, especially when the harassment is a continuous behavior.

In many cases, comments or actions are made unwittingly that are equivalent to sexual harassment. Even though there may have been no intent to harass another person, an offender might make sexually discriminating remarks or impose a role based on sex — especially concerning sexual behavior or appearances — and degrade another person's personality as a result. When this occurs, the consequences can be just as severe as those caused by intentional harassment.

To illustrate: if a man compliments a woman on her taste in clothes on a regular basis, this is not necessarily sexual harassment. However, if she tells him it makes her uncomfortable and asks him to stop, and he continues, it becomes sexual harassment — even if he does not intend it to be.

Both intentional and unintentional sexual harassment are forms of sexual discrimination that severely deny human rights (Webb, 1992). In the workplace, sexual harassment occurs mostly within a hierarchy — such as between supervisors and subordinates — where it is difficult for the person of inferior status to stop the behavior. The harassed individual may also suffer considerable psychological damage, particularly when the harassment comes from someone he or she had trusted.

For this reason, the Supreme Court holds that employers are automatically liable for sexual harassment by supervisors in all cases involving a "tangible employment action," such as discharge, demotion, undesirable reassignment, or change of benefits. Employers are also automatically liable for sexual harassment by a supervisor even when no tangible employment action is involved.

In cases where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that opportunity or benefit.

Sexual harassment may subject an employee to suspension or expulsion regardless of intent (Gibson, 1995). The fact that an employee or supervisor did not mean to subject another person to sexual harassment is not a defense. The negative effect of the sexually offensive conduct on another person is, by itself, sufficient grounds for punishment.

Ultimately, the best defense against sexual harassment is prevention. An employer should take all steps necessary to prevent sexual harassment from occurring — such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise the issue of harassment, and developing methods to sensitize all involved.

Quid Pro Quo vs. Hostile Environment Harassment

Sexual harassment is a type of sex discrimination and a violation of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) guidelines define two types of sexual harassment: "quid pro quo" and "hostile environment" (Bushweller, 1994).

Quid pro quo harassment takes place when an employee is directly or subtly required to tolerate harassment in order to retain or obtain a job, a promotion, or a pay increase. This form is typically easy to recognize. For example, if an employee's boss threatens to withhold a promotion unless the employee agrees to submit to sexual demands, quid pro quo harassment has occurred.

Quid pro quo harassment may occur even if the harasser does not actually carry out the threatened action — such as hiring, firing, promoting, or disciplining — as long as he or she has been part of the decision-making process. Furthermore, quid pro quo harassment does not always involve a clear threat and can often be very subtle. Victims are frequently not told specifically how or when they will be harmed if sexual advances are refused.

A hostile environment exists when harassment is severe or pervasive enough to interfere with or alter an employee's work performance, or to create a hostile, abusive, or offensive workplace. According to Webb (1992), a hostile environment is present if one or more of the following conditions exist:

• unwelcome sexual advances;
• requests for sexual favors; and/or
• verbal or physical conduct of a sexual nature that interferes with an employee's work performance or creates an intimidating, hostile, or offensive working environment.

For example, if an employee continually makes lewd or graphic verbal comments about a fellow employee's body, sexual prowess, or sexual deficiency, he or she is creating a hostile environment. The same applies if the employee makes threats or demands of a sexual nature.

Severity of Quid Pro Quo Harassment

Quid pro quo sexual harassment is a more severe form of sexual harassment because it occurs in situations where one person holds formal or informal power over another. A person in authority requests that a subordinate engage in inappropriate sexual behavior in exchange for job security or advancement. Because of the workplace hierarchy, the harassed person is less likely to complain — and is often economically dependent on the aggressor.

The abuse is also deeply humiliating, leading victims to keep it secret. Fearing job loss and economic insecurity, the victim stays silent. The victim may also fear rejection or disbelief from the legal system if he or she seeks recourse from higher authorities. Studies have repeatedly shown that very few individuals report their experiences or submit an official complaint, particularly in cases of quid pro quo harassment. This pattern of silence is itself evidence of just how severe this form of harassment is. For more on EEOC enforcement and reporting processes, see the EEOC's official guidance on sexual harassment.

References

Bushweller, Kevin. (1994). The gender debate. American School Board Journal, 181(5): 22.

Gibson, Paul. (1995). Sexual harassment management for managers and supervisors. Chicago: Jennins and Co.

Jayne, Brian C. (1994). Interviewing strategies that defeat deceit. Security Management, Feb. 1994: 37–42.

National Women's Law Center. (1995). Sexual harassment in employment and education. Seattle, WA: Northwest Women's Law Center.

Webb, Susan. (1992). Step forward: Sexual harassment in the workplace — What you need to know. New York: Avery.