The Scourge of Sexual Harassment

posted in: White Papers | 0

Anyone who has even glanced at the news cannot have missed the sexual harassment allegations made against high-profile entertainment icons: Bill Cosby, Bill O’Reilly, and, most recently, Harvey Weinstein. The story is familiar: people enjoying influence and authority by bullying those with much less.

The casting couch is not limited to Hollywood, though, this dynamic can happen almost anywhere people work together. It occurs on industrial floors, in broadcasting, and in academia. It’s a power play, a form of bullying, and increasingly, it happens online.

This bullying involves sexually coercive tactics and is often abetted by a corporate culture or educational setting. Sexual harassment is wrong.

Sexual harassment is a term brought into mainstream dialogue in 1975, by Lin Farley, who observed and named it as a systematic form of hostility, while teaching a Cornell University course on gender and the workplace.

In the workplace, harassment offends the law when, by its repetition or severity, it gives rise to a hostile work environment or an adverse employment action—for example, demotion, dismissal, or effectively being pushed to quit. Harassment may come from a wide variety of perpetrators: managers, co-workers, vendors—even customers.

Why Sexual Harassment Should Be Confronted, Not Tolerated

The recent allegations of assault, sexual harassment, and rape by film mogul Harvey Weinstein has our society asking what policies should be in place in all workplaces. As a society, we are understanding how crucial it is that targets and victims of harassment and abuse do not have to shoulder the burden of defending themselves against it.

On October 17, 2017, on the television show The Weeds, Ezra Klein suggested formal hiring processes for all jobs, including the cinematic arts, noting, “We have created a world in which women really bear the brunt of keeping themselves safe.”

Yet, sexual harassment and assault may be prevented by school and workplace education, and by administrative action that demands a safe atmosphere.

Educational initiatives at fraternities, for instance, can and do stop the perpetration of this abuse. In contrast, without a sustained effort to cultivate a safe educational environment, fault lies with the institution. This is typically the scenario where systematic harassment or hazing may occur. (See our white paper here.)

The availability of legal representation to challenge perpetrators can be imperative in our social climate.

The Costs to Victims

Sexual harassment is costly to the whole of society, and particularly to women of every walk of life. Most women, and many others in socially vulnerable positions, will experience sexual harassment at some point in their working lives.

For those who directly experience the abuse, the costs can be severe and include psychological injury, like anxiety and stress, the impairment of physical health, and even suicide.

Retaliation is common, and it compounds the mental and physical tolls on the victims.

Victims frequently become accused of inviting the abuse by their own appearance. Attacks on the victims’ characters are often added to the original incidents of harassment. Victims may experience resentment—not only from the main perpetrator(s), but also from other management who might wish to silence the victims, co-workers who may fear becoming a target of abuse, or both.

Retaliation against a victim who speaks out may typically involve blacklisting, further sexual harassment, stalking, and online abuse.

US Law Pertaining to Sexual Harassment

Civil Rights Law

Sexual harassment is sex discrimination. Therefore, sexual harassment is a violation of the federal Civil Rights Act of 1964, Title VII.

The Civil Rights Act of 1964 forbids any kind of employment discrimination on account of sex, as well as on account of race or color, religious views, or national origin. This discrimination occurs when the sex of the worker is made as an express or _de facto _condition of employment.

The Civil Rights Act of 1991 continued to build on Title VII protection. It broadened the rights of victims to go to court and sue for damages, both compensatory and punitive.

The federal Act applies to employers at any level of government with fifteen or more employees. Title VII also covers unions and employment agencies. It pertains to colleges and universities, even private ones.

The Position of the EEOC

In 1980 the federal Equal Employment Opportunity Commission (EEOC) put forth regulations that described and barred sexual harassment. The EEOC declared that sexual harassment constitutes sex discrimination prohibited by the Civil Rights Act of 1964.

Simply stated, the EEOC deems sexual harassment in the workplace illegal. And the EEOC’s definition has a wide scope, clearly meant to cover many forms of abuse.

Under the EEOC definition, sexual harassment has the following elements:

  • Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature;
  • Submission to this conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment;
  • A person’s submission to or rejection of the conduct becomes the basis for employment decisions affecting the person;
  • The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Further, the EEOC deems it unlawful to harass any candidate or worker—of any sex. Men have long been invisible victims, yet the EEOC’s statistics show that men do experience and report sexual harassment at work. Some 17% of sexual harassment complaints filed with the EEOC are submitted by workers identified as men. The EEOC says that the victim and harasser could be any gender and that the parties need not be identified as different sexes.

The EEOC’s guidelines for defining and barring sexual harassment also include educational settings. The U.S. Department of Education, which administers Title IX, considers school districts responsible for harassment by any teacher whose position of authority at the school establishes a platform for abusing students.

The Department of Education also offers detailed Sexual Harassment Guidance addressing the conduct of school staffers, other students, or third parties.

Under Title IX of the United States Education Amendments of 1972, institutes of higher education that accept federal funds must, promptly and fairly, address complaints of sexual assault.

What the Courts Say

The U.S. Supreme Court first named and acknowledged sexual harassment as contrary to Title VII of the Civil Rights Act in 1986, in Meritor Savings Bank v. Vinson. Thus, we have the foundational standards to demonstrate that sexually offensive speech, conduct, or both are unwelcome, and to assess the employer’s liability for perpetuating or permitting a hostile work environment.

Since that foundational case, the courts have incorporated into the U.S. legal sphere a firm approach to dealing with sexual harassment. The courts have overridden the criminal law field’s “reasonable man” standard of determining whether violations occurred. They developed a “reasonable woman standard” which facilitates the assessment of the perpetrator’s conduct from the point of view of those who are harmed by it.

The courts have accepted class action suits for sexual harassment impacting multiple people in a workplace, and they have held companies liable for their staffers’ bullying conduct.

The courts also acknowledge the reality of retaliatory discharge. That is, sexual harassment may lead to unjust firing of a person who resisted the abuse.

All forms of retaliation—for example, demotion or treatment that would discourage a reasonable worker from claiming discrimination—are against the law. This is so, regardless of whether the original charge of sexual harassment was not proven.

The courts also recognize the concept of a hostile work environment. Sexually explicit language and threats, as well as pornographic imagery, may be factors.

Legal Options

There are statutes in place so that victims of workplace sexual harassment can file formal complaints. The victim can also make a case using tort law. Class action suits are an option in some cases.

Because there is no threshold level of offensive conduct, and because of the detrimental effects on the public good related to claims of sexual harassment, a company will often prefer a settlement to fighting the claimant in court.

This white paper is made available for informational purposes only. To determine where legal prohibitions and compensation may be relevant, it is advisable to have a lawyer examine case-specific facts.

IF YOU HAVE EXPERIENCED DISCRIMINATION OR ABUSE AT SCHOOL, AS A JOB CANDIDATE, OR ON THE JOB, CONTACT US FOR LEGAL ASSISTANCE TODAY

Our attorneys at the Marrone Law Firm, LLC are admitted to the Bar in the states of Pennsylvania, New Jersey, and New York. We are licensed to defend your case in state and federal courts in all three states. Additionally, the Marrone Firm litigates in other jurisdictions, both in federal court and in state courts as appointed pro hac vice.

We can advise as to whether your workplace harassment should be filed with the EEOC for standing to sue a company in federal court, whether other statutory provisions apply, or whether to consider proceeding in tort law. Experienced litigator Joseph M. Marrone, Esquire can be reached through our office by calling 215-732-6700 or toll free at 866-732-6700.

Website: www.marronelawfirm.com.

Facebook: https://www.facebook.com/marronelawfirm/

Twitter: https://twitter.com/MarroneLaw

Media Contact for Marrone Law Firm, LLC: Brigette Lutz blutz@marronelawfirm.com

Legal References Cited

Charges Alleging Sex-Based Harassment (Charges filed with EEOC), FY 2010 – FY 2016; available at:

https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm

Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998).

Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, 548 U.S. 53 (2006).

Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Oncale v. Sundowner Offshore Services, 523 US 75 (1998).

Reeves v. C.H. Robinson Worldwide, Inc., 5No. 07-10270 (11th Cir. Jan. 20, 2010).