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Sexual Harassment in the Workplace

What is Sexual Harassment?

Sexual harassment is a form of sex discrimination. As a result, when it occurs on the job it violates the laws against sex discrimination in the workplace, including Title VII of the Civil Rights Act of 1964.(1)

Sexual harassment is unwelcome behavior that happens to workers because of their sex. Frequently, the fact that it's sexual is a clear sign that, but for her (or his) sex, a worker would not have been targeted.

It includes:

  • Unwelcome sexual advances
  • Requests for sexual favors, or
  • Verbal or physical conduct of a sexual nature

When:

  • Submission to or rejection of such conduct is used as the basis for employment decisions or is made a condition of employment (quid pro quo harassment, or harassment resulting in a tangible employment action), or
  • Such conduct is sufficiently severe or pervasive that it creates an intimidating, hostile, or offensive work environment (hostile environment harassment).

Sexual harassment may or may not involve any physical contact, and words alone may be enough to constitute either type of harassment.

Incidence and Prevalence

  • Sexual harassment is very widespread and affects women in every workplace setting and at every level of employment. Surveys indicate that almost half of all working women have experienced some form of harassment on the job, a proportion that has not changed since the issue gained visibility in the early 1980s.(2)
  • No occupation is immune from sexual harassment, but the incidence of harassment is higher in workplaces that have traditionally excluded women, including both blue collar jobs like mining and white collar ones like surgery.(3)
  • Very few harassed women, only 5 - 15%, formally report problems of harassment to their employers or fair employment agencies.(4) Women are sometimes reluctant to make allegations of sexual harassment for a number of reasons, including fear of losing their jobs or otherwise hurting their careers, fear of not being believed, the belief that nothing can or will be done about the harassment, and embarrassment or shame at being harassed.(5) From 1992 - 1999, however, the EEOC has seen a 45% increase in sexual harassment charges.(6)
  • Workers can be, and are, harassed by anyone in the workplace. That includes supervisors, co-workers, and even customers and clients. Men as well as women can be harassed, and the harasser can be the same sex as the victim.(7)

Harms from Harassment

  • Sexual harassment often has a serious and negative impact on women's physical and emotional health, and the more severe the harassment, the more severe the reaction. The reactions frequently reported by women include anxiety, depression, sleep disturbance, weight loss or gain, loss of appetite, and headaches. Researchers have also found that there is a link between sexual harassment and Post-Traumatic Stress Disorder.(8)
  • Harassment can also cause substantial financial harm for victims. Victims often try to avoid the harassing behavior by taking sick leave or leave without pay from work, or even quitting or transferring to new jobs. This results in a loss of wages, for example costing federal employees $4.4 million over 2 years.(9)
  • Employers also suffer significant financial losses from the job turnover, use of sick leave, and losses to individual and workgroup productivity that result from harassment. The federal government lost $327 million due to harassment from 1992 - 1994.(10)
  • Harassment can poison the work atmosphere and negatively impact other workers who are not themselves harassed. In fact, decreased work group productivity was the largest single cost to the government in its survey of harassment.(11)

Employer Liability

Employers can be legally responsible for sexual harassment against their employees and liable to them for damages. Liability depends on the type of harassment, and who committed it.

Harassment by a supervisor:

  • If the harassment results in a tangible employment action (such as firing, demotion, or unfavorable changes in assignment), the employer is liable.
  • If the harassment is a hostile work environment, then the employer can also be liable, but it has a possible defense, if it can show that (1) the employer exercised reasonable care to prevent and promptly correct any harassment and (2) the employee unreasonably failed to take advantage of the company's preventive or corrective measures.(12)

Harassment by a co-worker:

  • The employer is liable if it knew or should have known about the harassment, unless it took immediate and appropriate corrective action.(13)

Significant monetary damages are possible and not uncommon in sexual harassment cases. Victims of harassment may receive both compensatory and punitive damages, and they are entitled to a trial by jury.(14)

August, 2000

NOTES

1. See 42 U.S.C. 2000e-2 (1994); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

2. See Louise F. Fitzgerald & Sandra L. Shulman, "Sexual Harassment: A Research Analysis and Agenda for the 1990s," 42 Journal of Vocational Behavior 5, 7 (1993) (one half of working women have experienced harassment); U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Workforce: Trends, Progress, and Continuing Challenges 13 (1995) (44% of women federal government employees had experienced harassment over a two-year period, a slight increase over 14-year period).

3. See Governor's Task Force on Sexual Harassment, Final Report Submitted to Gov. Mario M. Cuomo, Sexual Harassment: Building a Consensus for Change, chap. 4 (1993); Louise F. Fitzgerald, "Sexual Harassment: Violence Against Women in the Workplace," 48 American Psychologist 1070, 1071 (1993).

4. See Sexual Harassment in the Federal Workforce, supra note 2, at 30, 34 (12% of victims report harassment to supervisors; 6% took more formal action); Kimberly T. Schneider, Suzanne Swan, and Louise F. Fitzgerald, "Job-Related and Psychological Effects of Sexual Harassment in the Workplace: Empirical Evidence from Two Organizations," 82 Journal of Applied Psychology 401, 408 (1997) (6 - 13% made a formal complaint); James E. Gruber and Michael D. Smith, "Women's Responses to Sexual Harassment: A Multivariate Analysis," 17 Basic and Applied Psychology 543, 552 (1995) (8.3% made a report).

5. See Louise F. Fitzgerald, Suzanne Swan, and Karla Fischer, "Why Didn't She Just Report Him? The Psychological and Legal Implications of Women's Responses to Sexual Harassment," 51 Journal of Social Issues 117, 122 (1995); Sexual
Harassment in the Federal Workforce, supra note 2, at 35.

6. See EEOC, Sexual Harassment Charges: EEOC & FEPAs Combined: FY 1992 - FY 1999, http://www.eeoc.gov/stats/harass.html.(accessed on July 17, 2000).

7. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

8. See Barbara A. Gutek and Mary P. Koss, "Changed Women and Changed Organizations: Consequences of and Coping with Sexual Harassment," 42 Journal of Vocational Behavior 28, 33 (1993); Fitzgerald, supra note 3, at 1072.

9. See Sexual Harassment in the Federal Workforce, supra note 2, at 26.

10. See id.

11. See id. at 25 - 26.

12. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); EEOC, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999), in EEOC Compliance Manuel (BNA), N:4075, also available at http://www.eeoc.gov/docs/harassment.html.

13. See Ellerth, 524 U.S. at 760; Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999); EEOC, Guidelines on Discrimination Because of Sex, 29 C.F.R.