Sexual Harassment

Sexual harassment is harassment or unwelcome attention of a sexual nature. It includes a range of behavior from mild transgressions and annoyances to serious abuses, which can even involve forced sexual activity.  Sexual harassment is considered a form of illegal discrimination in many countries, and is a form of abuse (sexual and psychological) and bullying.  For many businesses, preventing sexual harassment, and defending its managerial employees from sexual harassment charges, have become key goals of legal decision-making.  Approximately 15,000 sexual harassment cases are brought to the U.S. Equal Employment Opportunity Commission (EEOC) each year. Media and government surveys estimate the percentage of women being sexually harassed in the U.S. workplace at 40% to 60%.

Types of Harassment

There is usually more than one type of harassing behavior present, so a single harasser will often fit more than one category. These are brief summations of each type. Please note that the following types of sexual harassment are not legal"definitions:

Power-Player

Legally termed "quid pro quo" harassment, the harasser insists on sexual favors in exchange for benefits they can dispense because of their position in the hierarchy: getting or keeping a job, favorable grades, recommendations, credentials, projects, promotion, orders, and other types of opportunities.

Mother/Father Figure

This harasser will try to create a mentor-like relationship with their target, all the while masking their sexual intentions with pretenses towards personal, professional, or academic attention. This is a common method of teachers who sexually harass students.

One-of-the-Gang

Often motivated by bravado or competition, or because the harasser(s) think it is funny, One-of-the-gang harassment occurs when groups of men or women embarrass others with lewd comments, physical evaluations, or other unwanted sexual attention. Harassers may act individually in order to belong or impress the others, or groups may gang up on a particular target. An extreme example is Tailhook '91 during which participants sexually abused seven men and 83 women as part of a three-day U.S. Navy aviator convention.

Serial Harasser

This type carefully builds up an image so that people would find it hard to believe they would do anyone any harm. They plan their approach carefully, and strike in private so that it is their word against that of the victim.

Groper

Whenever the opportunity presents itself, this harasser's eyes and hands begin to wander--in the elevator, when working late, at the office or department party. They like to insist on (usually begrudged) kisses or hugs and sometimes involving grabbing the woman's breasts or buttocks. Called chikan in Japan, the problem is so pervasive there that men are increasingly being banned altogether from stores, restaurants, hotels, spas and even entertainment outlets, and women-only train cars have been created.

Opportunist

The Opportunist uses physical settings and circumstances, or infrequently occurring opportunities, to mask premeditated or intentional sexual behavior towards a target. This will often involve changing the environment in order to minimize inhibitory effects of the workplace or school(e.g private meetings, one-on-one "instruction," field trips, conferences)

Bully

In this case, sexual harassment is used to punish the victim for some transgression, such as rejection of the harasser's interest or advances, or making the harasser feel insecure about themselves or their abilities. The Bully uses sexual harassment to put the victim in his or her "proper place."

Confidante

This type of harasser approaches the subordinate, or student, as an equal or a friend, sharing about their own life experiences and difficulties, inventing stories to win admiration and sympathy, and inviting the subordinate to share theirs so as to make them feel valued and trusted. Soon the relationship moves into an intimate domain from which the subordinate finds it difficult to separate.

Situational Harasser

Harassing behavior begins when the perpetrator endures a traumatic event, or begins to experience very stressful life situations, such as psychological or medical problems, marital problems, or divorce. The harassment will usually stop if the situation changes or the pressures are removed.

Pest

This is the stereotypical "won't take 'no' for an answer" harasser who persists in hounding a target for attention and dates even after persistent rejections. This behavior is usually misguided, with no malicious intent.

Great Gallant

This mostly verbal harassment involves excessive compliments and personal comments that focus on appearance and gender, and are out of place or embarrassing to the recipient. Such comments are sometimes accompanied by leering looks. The "wolf whistles" of a street harasser are one example of this.

Intellectual Seducer

Most often found in educational settings, this harasser will try to use their knowledge and skills as an avenue to gain access to a student, or information about a student, for sexual purposes. They may require students participate in exercises or "studies" that reveal information about their sexual experiences, preferences, and habits. They may use their skills, knowledge, and course content to impress a student as an avenue to harassing or seducing a student.

Incompetent

These are socially inept individuals who desire the attentions of their target, who does not reciprocate these feelings. They may display a sense of entitlement, believing their target should feel flattered by their attentions. When rejected, this type of harasser may use bullying methods as a form of revenge.

Stalking

Stalking can also be a method of sexual harassment.

Sexualized Environments

Sexualized environments are environments where obscenities, sexual joking, sexually explicit graffiti, viewing Internet pornography, sexually degrading posters and objects, etc., are common. None of these behaviors or objects may necessarily be directed at anyone in particular. However, they can create an offensive environment, and one that is consistent with “hostile environment sexual harassment." For example, in one case, a female complainant was awarded compensation after her superiors ignored her complaint that her coworkers spent much time studying sexually explicit images downloaded from the Internet, and creating a “general atmosphere of obscenity” in the office. Case decisions Sexualized environments have also been shown to create atmospheres that encourage more serious and direct sexual harassment. For example, when obscenities are common in the workplace, women are 3 times more likely to be treated as sex objects, and be directly sexually harassed than in environments where profanity is not tolerated. And when sexual joking is common, sexual harassment is 3 to 7 times more likely.

Effects of Sexual Harassment

Effects of sexual harassment can vary depending on the individual, and the severity and duration of the harassment. Often, sexual harassment incidents fall into the category of the "merely annoying." However, many situations can, and do, have life-altering effects particularly when they involve severe/chronic abuses, and/or retaliation against a victim who does not submit to the harassment, or who complains about it openly. Indeed, psychologists and social workers report that severe/chronic sexual harassment can have the same psychological effects as rape or sexual assault. For example, in 1995, one woman committed suicide after chronic sexual harassment by her bosses and coworkers. Her family was later awarded 6 million dollars in punitive and compensatory damages. Backlash and victim-blaming can further aggravate the effects. Moreover, every year, sexual harassment costs hundreds of millions of dollars in lost educational and professional opportunities, mostly for girls and women.

Common Effects on Victims

Common professional, academic, financial, and social effects of sexual harassment:

1. Decreased work or school performance; increased absenteeism
2. Loss of job or career, loss of income
3. Having to drop courses, change academic plans, or leave school (loss of tuition)
4. Having one's personal life offered up for public scrutiny --the victim becomes the "accused," and his or her dress, lifestyle, and private life will often come under attack. (Note: this rarely occurs for the perpetrator.)
5. Being objectified and humiliated by scrutiny and gossip
6. Becoming publicly sexualized (i.e. groups of people "evaluate" the victim to establish if they are "worth" the sexual attention or the risk to the harasser's career)
7. Defamation of character and reputation
8. Loss of trust in environments similar to where the harassment occurred
9. Loss of trust in the types of people that occupy similar positions as the harasser or their colleagues
10. Extreme stress upon relationships with significant others, sometimes resulting in divorce; extreme stress on peer relationships, or relationships with colleagues
11. Weakening of support network, or being ostracized from professional or academic circles (friends, colleagues, or family may distance themselves from the victim, or shun them altogether)
12. Having to relocate to another city, another job, or another school
13. Loss of references/recommendations

Some of the psychological and health effects that can occur in someone who has been sexually harassed: depression, anxiety and/or panic attacks, sleeplessness and/or nightmares, shame and guilt, difficulty concentrating, headaches, fatigue or loss of motivation, stomach problems, eating disorders (weight loss or gain), feeling betrayed and/or violated, feeling angry or violent towards the perpetrator, feeling powerless or out of control, increased blood pressure, loss of confidence and self esteem, withdrawal and isolation, overall loss of trust in people, traumatic stress, post-traumatic stress disorder (PTSD), complex post-traumatic stress disorder, suicidal thoughts or attempts, suicide.

Effects of Sexual Harassment on Organizations

1. Decreased productivity and increased team conflict
2. Decrease in success at meeting financial goals (because of team conflict)
3. Decreased job satisfaction
4. Loss of staff and expertise from resignations to avoid harassment or resignations/firings of alleged harassers; loss of students who leave school to avoid harassment
5. Decreased productivity and/or increased absenteeism by staff or students experiencing harassment
6. Increased health care costs and sick pay costs because of the health consequences of harassment
7. The knowledge that harassment is permitted can undermine ethical standards and discipline in the organization in general, as staff and/or students lose respect for, and trust in, their seniors who indulge in, or turn a blind eye to, sexual harassment
8. If the problem is ignored, a company’s or school's image can suffer
9. Legal costs if the problem is ignored and complainants take the issue to court.

Retaliation & Backlash

Retaliation and backlash against a victim are very common, particularly a complainant. Victims who speak out against sexual harassment are often labeled troublemakers who are on their own power trips, or who are looking for attention. Similar to cases of rape or sexual assault, the victim often becomes the accused, with their appearance, private life, and character likely to fall under intrusive scrutiny and attack. They risk hostility and isolation from colleagues, supervisors, teachers, fellow students, and even friends. They may become the targets of mobbing or relational aggression.

Women are not necessarily sympathetic to female complainants who have been sexually harassed. If the harasser was male, internalized sexism, and/or jealousy over the sexual attention towards the victim, may encourage some women to react with as much hostility towards the complainant as some male colleagues. Fear of being targeted for harassment or retaliation themselves may also cause some women to respond with hostility. For example, when one woman filed her lawsuit against employer, the women placed a hangman's noose above her workplace, and shunned her both at work and in the community--many of these women later joined her suit.  Women may even project hostility onto the victim in order to bond with their male coworkers and build trust.

Retaliation has occurred when a sexual harassment victim suffers a negative action as a result of the harassment. For example, a complainant be given poor evaluations or low grades, have their projects sabotaged, be denied work or academic opportunities, have their work hours cut back, and other actions against them which undermine their productivity, or their ability to advance at work or school. They may be suspended, asked to resign, or be fired from their jobs altogether. Moreover, a professor or employer accused of sexual harassment, or who is the colleague of a perpetrator, can use their power to see that a victim is never hired again, or never accepted to another school. Retaliation can even involve further sexual harassment, and also stalking and cyberstalking of the victim.

Civil Rights Act of 1964 Title VII

In the United States, the Civil Rights Act of 1964 Title VII prohibits employment discrimination based on race, sex, color, national origin or religion. The prohibition of sex discrimination covers both females and males, but the origin of the law was to protect women in the workplace and that is its main emphasis today. This discrimination occurs when the sex of the worker is made as a condition of employment (i.e. all male waiters or carpenters) or where this is a job requirement that does not mention sex but ends up barring many more persons of one sex than the other from the job (such as height and weight limits).

Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used.[31] In 1976, Williams v. Saxbe established sexual harassment as a form of sex discrimination when sexual advances by a male supervisor towards a female employee, if proven, would be deemed an artificial barrier to employment placed before one gender and not another. In 1980 the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by the Civil Rights Act of 1964. In the 1986 case of Michelle Vinson v. Merit One Savings Bank, the Supreme Court first recognized “sexual harassment” as a violation of Title VII, established the standards for analyzing whether the conduct was welcome and levels of employer liability, and that speech or conduct in itself can create a "hostile environment." The Civil Rights Act of 1991 added provisions to Title VII protections including expanding the rights of women to sue and collect compensatory (punitive) damages for sexual discrimination or harassment, and the case of Ellison v. Brady resulted in rejecting the reasonable person standard in favor of the "reasonable woman standard" which allowed for cases to be analyzed from the perspective of the complainant and not the defendant. Also in 1991, Jenson v. Eveleth Taconite Co. became the first sexual harassment case to be given class action status, paving the way for others. Seven years later, in 1998, this case would establish new precedents for setting limits on the "discovery" process in sexual harassment cases, and allowing psychological injuries from the litigation process to be included in assessing damages awards. In the same year, the courts concluded in Faragher v. City of Boca Raton, Florida, and Burlington v. Ellerth, that employers are liable for harassment by their employees. Moreover, Oncale v. Sundowner Offshore Services set the precedent for same-sex harassment, and sexual harassment without motivation of "sexual desire", stating that any discrimination based on sex is actionable so long at it places the victim in an objectively disadvantageous working condition, regardless of the gender of either the victim, or the harasser.

In the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White, the standard for retaliation against a sexual harassment complainant was revised to include any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination.

EEOC Definition

In 1980 the Equal Employment Opportunity Commission produced a set of guidelines for defining and enforcing Title VII (in 1984 it was expanded to include educational institutions). The EEOC defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual's employment,
2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Types 1 and 2 are called "quid pro quo" (Latin for "this for that" or "something for something"). They are essentially "sexual bribery", or promising of benefits, and "sexual coercion".  Type 3. known as "hostile work environment," is by far the most common form. This form is less clear cut and is more subjective

Quid Pro Quo

In the workplace, this occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. For example, a supervisor promises an employee a raise if she will go out on a date with him, or tells an employee she will be fired if she doesn't sleep with him. Quid pro quo harassment also occurs when an employee makes an evaluative decision, or provides or withholds professional opportunities based on another employee's submission to verbal, nonverbal or physical conduct of a sexual nature.  Quid pro quo harassment is equally unlawful whether the victim resists and suffers the threatened harm or submits and thus avoids the threatened harm.

Hostile Environment

Hostile environment sexual harassment refers to a situation where employees in a workplace are subject to a pattern of exposure to unwanted sexual behavior from persons other than an employee's direct supervisor where supervisors or managers take no steps to discourage or discontinue such behavior. It is distinguished from "quid pro quo" sexual harassment, where a direct supervisor seeks sexual favors in return for something within the supervisor's powers, such as threatening to fire someone, or offering them a raise. Quid pro quo has been recognized as actionable for decades, but hostile environment has only been recognized as an actionable behavior since the late 1980s as courts have made findings that the loss of employment or constructive dismissal has been caused by such behavior. Some situations that have been ruled to constitute such a hostile environment are:

1. Posting of sexually suggestive pictures in employee's cubicles;
2. Consistently telling "dirty" jokes or stories where all employees in the work area can hear them;
3. Tolerating employees who make sexually suggestive remarks about other employees within earshot of others;
4. Allowing peer employees, clients, suppliers, delivery persons, or even customers to persist in unwanted attention, such as asking for dates;
5. Allowing the use of derogative terms with a sexual connotation(e.g. "pussy", "girlie-man") to be used to describe co-workers; or
6. Allowing frequent physical contact, even when it is not sexual.

Burden of Proof

Where a hostile environment is alleged, the legality of behaviors must be determined on a case by case basis. In the workplace, such a claim focuses on the working conditions that must be endured by the victim as a condition of employment, rather than on tangible job changes. To establish whether the situation is actionable the "totality of circumstances" must be weighed with an eye to determining "that the harassment affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment" (Peiliciotti, 1988). To rise to the level of hostile environment, the behavior must be frequent, severe and pervasive. It is not enough that a single such incident, or a few isolated incidents, have occurred, or that only one employee engages in such conduct (unless that employee is in a supervisory capacity).

In order to establish a prima facie case for hostile work environment sexual harassment, the alleged victim must prove the following five elements:

1. He or she suffered intentional, unwanted discrimination because of his/her sex;
2. The harassment was severe or pervasive;
3. The harassment negatively affected the terms, conditions or privileges of his/her work environment;
4. The harassment would detrimentally affect a reasonable person of the same sex; and
5. Management knew about the harassment, or should have known, and did nothing to stop it.

Retaliation

Retaliation has occurred when an employee suffers a negative action after they make a report of sexual harassment, file a grievance, assist someone else with a complaint, or participate in discrimination prevention activities. Negative actions can include being fired, demotion, suspension, denial of promotion, poor evaluation, unfavorable job re-assignment--any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination. Retaliation is as illegal as the sexual harassment itself, but also as difficult to prove. Also, retalition is illegal even if the original charge of sexual harassment was not proven.

Legal Options

There are a number of legal options for a complainant in the U.S.: mediation, filing with the EEOC or filing a claim under a state Fair Employment Practices (FEP) statute (both are for workplace sexual harassment), filing a common law tort, etc. Not all sexual harassment will be considered severe enough to form the basis for a legal claim. However, most often there are several types of harassing behaviors present, and there is no minimum level for harassing conduct under the law.(Boland, 2002) Many more people have experienced sexual harassment than have a solid legal case against the accused. Because of this, and the common preference for settling, few cases ever make it to federal court.

Criticisms

Tolerance must be the rule in certain workplaces, and the standard of what constitutes a hostile environment differs from workplace to workplace. For example, it would hardly be fair to hold a strip club to the same standard as a law firm, although a strip club could still harbor a hostile environment if management took no action to prevent the dancers from unwanted attention outside of their normal job routine. For example, if a club had a strict "no touch" policy, allowing bouncers or bartenders to persist in unwanted touching could constitute a hostile environment. Moreover, the sensibilities of the most sensitive employee are not the standard — the conduct must be objectionable to any reasonable person.

However, an employer is not allowed to tolerate a hostile environment merely because one sex dominates a department or job function. An employee is entitled to an environment free of lewd, inappropriate behavior such as sexually derogatory jokes and obscene materials, especially in public areas.

Recently, some males in all male workplaces have made claims of hostile environment, often because they became uncomfortable with the sexual banter common in a department and were further denigrated for not joining in such behavior.

There is no universal standard as to what constitutes a hostile environment, and cases with very similar fact situations have been decided differently. Moreover, the standard of finding the employer liable is very high — the plaintiff must show that the employer was actually aware of the behavior, or should have been aware of it under reasonable circumstances. It is also not enough to show that sexually suggestive behavior occurred — the plaintiff must show that the employer could have taken reasonable steps to stop the behavior. For example, the employer could not be held liable for such behavior if it occurred at a bar after work.