As more and more women have entered the workforce in the last several decades, there has been a heightened awareness of the problem of sexual harassment. The recent rise of successful employee litigation in this area, combined with an extension of an employer's liability for acts of its supervisors and often its rank-and-file employees, has created an area of serious concern to employers. This is particularly so given the record settlements by the Equal Employment Opportunity Commission (EEOC) for claims of sexual harassment against one large company for 9.85 million and another for $34 million. Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. It includes any unwelcome advances, requests for sexual favors and any other verbal, visual, or physical conduct of a sexual nature which meets any one of the following three criteria: 1.
Submission to such conduct is made either explicitly or implicitly a term condition or condition of the individual's employment; 2.
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3.
Conduct which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. In determining whether one of the above criteria is met, the standard to be applied is that of the reasonable victim of the same gender as the victim. For example, the perspective of a "reasonable female victim" should be applied when the victim is a woman. It is no defense to a claim of sexual harassment that the alleged harasser did not intend to harass. The U.S. Supreme Court has recently decided two important cases in the area of sexual harassment: Burlington Industries, Inc. v. Ellerth, Docket No. 97-569 and Faragher v. City of Boca Raton, Docket No. 97-282. These cases follow on the heels of two other recent sexual harassment decisions, one of which found that Title VII of the Civil Rights Act of 1964 covers same sex sexual harassment, Onkill v. Sundowner Off Shore Services, 118 Supreme Court 998 (1998), and the other of which found that school districts could not be held liable for teachers' sexual harassment of a student under Title IX, unless school officials knew about the problem and failed to take appropriate remedial action, Gebser v. Lago Vista Ind. Sch. Distr., Docket No. 96-1866. In previous cases, courts have distinguished between two types of supervisory sexual harassment: (1) quid pro quo harassment, where the supervisor conditions some job benefit or detriment upon a subordinate's acceptance of sexual advances or favors; and (2) hostile environment harassment, where the supervisor subjects a subordinate to sexual comments, gestures, or advances which are sufficiently severe and pervasive to alter the conditions of the employee's employment. In these two recent decisions, the Supreme Court clarified the standards for employer liability in such situations:
If a supervisor subjects a subordinate employee to some negative job action based upon the employee's acceptance or rejection of his/her sexual advances, the company will be automatically liable for that supervisor's harassing conduct. It is irrelevant in such a situation whether the company maintained an anti-harassment policy or whether the victim complained to management, and no affirmative defense is available to the employer in such cases. Examples of tangible employment action include: discharge, demotion, pay cuts, withholding a raise or a promotion, job reassignment with significantly different duties, or creating work conditions that are so intolerable that the employee is forced to resign.
Where a supervisor acts in a manner which creates a hostile work environment for a subordinate employee, but does not take any negative job action against that employee, and where the conduct is extreme, severe or pervasive, the...
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