SEXUAL HARRASSMENT -- FACT v. MYTH
From: nsbrown@zeus.IntNet.net (NS Brown)
Subject: SEXUAL HARRASSMENT -- FACT v. MYTH
Date: 15 Sep 1994 13:43:15 -0400
An explanation of some of the sexual harassment case law
There's been a great deal of debate about sexual harrassment over the
last few weeks on alt.feminism and other newsgroups. Alas, much of it has
been debate "springing from a firm base of ignorance," to quote
one of my old law professors. Much of the debate has centered on what people
think sexual harrassment law is, without regard to what it really
is. So, to give everyone (who doesn't already know) a firmer base than ignorance,
a quick primer on the law of sexual harrasment under Title VII of the Civil
Rights Act. (NOTE: this post will refer specifically to sexual harrassment
in the workplace; the same general principles apply in academic settings
Sexual Harrassment comes in two forms -- "quid pro quo" and
"hostile working environment." The former is pretty straight-
forward: "sleep with me or you're fired." Essentially, "quid
pro quo" harrassment involves making conditions of employment (hiring,
promotion, retention, etc.) contingent on the victim's providing sexual
favors. Very few people have a problem with this, and I'm not going to spend
any more time on it unless someone has questions.
Hostile working environment
"Hostile working environment" harrassment is the one people
are really arguing about. So what is it?
"When the workplace is permeated with 'discriminatory intimi- dation,
ridicule, and insult,' that is 'sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment,' Title VII is violated." Harris v. Forklift Systems,
Inc., 114 S.Ct. 367 (1993) (quoting Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)).
"'[M]ere utterance of an ... epithet which engenders offensive feelings
in an employee does not sufficiently affect the conditions of employment
to implicate Title VII. Conduct that is not severe enough to create an OBJECTIVELY
hostile or abusive work environment -- an environment that a REASONABLE
PERSON would find hostile or abusive -- is beyond Title VII's purview. Like-
wise, if the victim does not subjectively perceive the environment to be
abusive, the conduct has not actually altered the conditions of the victim's
employment, and there is no Title VII violation." Harris (again,
quoting Meritor; ALL CAPS added for emphasis by this writer).
"[W]hether an environment is 'hostile' or 'abusive' can be determined
only by looking at all the circumstances. These may include [a] the frequency
of the discriminatory conduct; [b] its severity; [c] whether it is physically
threatening or a mere offensive utterance; and [d] whether it unreasonably
interferes with an employee's work performance." Harris (logical
indicators [a], [b], etc. added by this writer).
This is the law on sexual harrassment, as handed down by a unanimous
Supreme Court in 1993. (Justices Scalia and Ginsburg wrote concurring opinions,
essentially arguing that only [d] above -- whether the speech/conduct unreasonably
interferes with an employee's work performance -- should have been the only
guiding criteria necessary. I take a middle view, arguing that [d] should
be NECESSARY and that [a], [b] and [c] may be used by the finder-of-fact
in making a determination of whether [d] exists. Both concurring Justices
agreed that the [d] criteria would have been met in the Harris case,
and thus the court found 9-0 in favor of Harris.)
Putting it in layman's terms
So, how can the law of "hostile working environment" be put
into layman's terms? Here's my attempt:
HWE -- [a] speech and/or conduct, [b] of a sexually discriminatory nature,
[c] which was neither welcomed nor encouraged, [d] committed by or permitted
by a superior, [e] which would be so offensive to a reasonable person
as to [f] create an abusive working envi- ronment and/or [g] impair his/her
- [a] "speech and/or conduct" -- sexual harrassment can be
mere words ("dumb ass woman," Harris), words in conjunction
with conduct (asking the employee to dig coins out of one's own pants pocket,
Harris) or conduct alone (fondling a woman's breast, Weeks v.
- [b] "of a sexually discriminatory nature" -- remember that
Title VII IS NOT A SPEECH CODE. This is a discrimination law. The
issue is not the content of the speech or the precise nature of the conduct
so much as whether that speech/ conduct is directed at the employee on
the basis of his/her gender (or has a disparate impact on the basis of
- [c] "which was neither welcomed nor encouraged" -- if the
defendant (employer) can show that the plaintiff (employee) welcomed and/or
encouraged the speech/conduct, there is no discrimination claim available.
This ties in to the Harris requirement that the victim must subjectively
have been offended by the speech/conduct. That is, the plaintiff can't
argue "Well, I wasn't offended at the time, but after I got fired
for stealing I talked to some people and found out that a reasonable
person would have been offended, I decided to sue anyway ...."
- [d] "committed by or permitted by a superior" -- again, Title
VII IS NOT A SPEECH CODE. It's a discrimination law. Thus, the plaintiff
must show that his/her superior "knew or should have known"
about the speech/conduct and did not intervene. (Obviously, if the superior
is the one doing the harrassment, the requirement is met.) So what does
"knew or should have known" mean? It means that "an ordinary,
reasonable prudent person in like or similar circumstances" would
have known. It means the employer can't say "Yeah, a reasonable
supervisor would have known this was going on, but I'm a lousy supervisor
and I didn't know, so don't hold me liable ...."
- [e] "would have been so offensive to a reasonable person"
-- One of the biggest myths about sexual harrassment law is that "the
woman gets to decide what she likes and what she doesn't." Balderdash.
The law has always had a "reasonable person" standard
(though Harris did away with the previous terminology of "reasonable
woman"). It's not enough that a given employee was offended. That
employee might, after all, be unreasonably sensitive or thin-skinned. The
plaintiff must show that "an ordinary, reasonable, prudent person
in like or similar circum- stances" would have been similarly offended.
In other words, the plaintiff can't argue "Well, I know a reasonable
person would have shrugged this off, but I'm not reasonable and
I was offended ...."
- [f] "create an abusive working environment and/or" -- this
is an area where the law needs to be developed. I would argue that this
element should be conjunctively (and) linked with [g], below. However,
Harris seems to indicate a disjunctive (or) link, and until we know
better, we ought to assume the more general (or) linkage. So what does
this mean? It means an environment which manifests hostility or abuse toward
one or more employees, on the basis of his/her/their gender. It means an
environment where the employee is distinctly (remember, this is
an objective standard) made to feel unwelcome, unwanted, scorned, ridiculed,
intimidated ... on the basis of his/her gender. It is, in the words of
Justice Scalia, an environment where "working conditions have been
DISCRIMINATORILY altered" for some employees. (Emphasis added.) The
underlying theory seems to be that the harrasser is attempting to get the
victim to either quit, or screw up enough to get fired (though the latter
falls under [g], below). It's a matter of "I may have to hire you,
but I can make you so miserable you won't want to stay" ... on the
basis of gender. Once again, Title VII IS NOT A SPEECH CODE. It's a discrimination
- [g] "impair his/her job performance" -- this may be seen
as merely an extension of [f] (above), or it may be that [f] is a way to
demonstrate this element. Either way, this element implies that the speech/conduct
is so offensive that a reasonable person's job performance would be impaired.
At this level, we are talking about trying to make life so miserable
that the victim will screw up enough to get fired. An example: let's assume
that Defendant MegaCorp fired Plaintiff Vicki, citing as its reasoning
that "she didn't get the filing done in a regular and orderly manner."
Vicki is able to show that the file room was right next to the men's restroom,
and that more often than not, when she went to the file room Mr. Jackson
would be in the door of the restroom saying "C'mon in and file this,
sweetcakes!" Thus, she was reluctant to go back there. Jackson's harrassment
impaired her job performance, and if she can show that a superior knew
or should have known about the harrassment and didn't intervene, she can
Situation is not as dire as you've heard
That's what sexual harrassment law is, under Title VII. One hopes
this has dispelled a few myths and misunderstandings, but a couple of miscellaneous
points ought to be noted:
- MYTH -- "I can't afford to even take the chance of getting sued,
so I'm going to fire anyone on first complaint. Even if I win the
lawsuit, the legal bills will kill me."
- FACT -- The prevailing party in a Title VII action can recover his/her/their/its
attorney's fees from the losing party. A claim for attorney's fees must
be pled, and there are some (HIGHLY technical) grounds under which it might
not be granted. But it is available.
- MYTH -- "This law is the product of radical man-hating feminists."
- FACT -- Gender discrimination was added to the Civil Rights Act of
1964 by men. Indeed, it was added by conservative men who
thought it would make the bill fail. It didn't. (And just how many radical
man-hating feminists were there in 1964?)
- MYTH -- "Every female employee is a ticking time bomb; there's
nothing I can do to protect myself."
- FACT -- A businessperson can protect him/herself quite easily. Develop
a sexual harrassment policy which is consistent with the law. (Many companies
have instituted truly draconian policies, which is both overkill and unfair
to their employees.) Apply that policy consistently and fairly. To quote
an old law professor of mine, "You can substantially minimize the
likelihood of being hanged for murder by the simple expedient of not killing
I hope this helps clarify the law, and will foster a more informed and
reasoned discussion of this issue.