From: (NS Brown)
Date: 15 Sep 1994 13:43:15 -0400

An explanation of some of the sexual harassment case law

To All:

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 as well.)

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 job performance.


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:

I hope this helps clarify the law, and will foster a more informed and reasoned discussion of this issue.