Academic journal article Journal of Managerial Issues

Sexually Harassed and Stressed Out: The Employer's Potential Liability

Academic journal article Journal of Managerial Issues

Sexually Harassed and Stressed Out: The Employer's Potential Liability

Article excerpt

When an employer receives a complaint of sexual harassment, the initial reaction is to worry about a suit under Title VII of the Civil Rights Act or under a state civil rights statute. However, recent trends involving stress-related claims indicate that employers face large damage awards from the stress-related consequences arising from sexual harassment under both state workers' compensation statutes and common law torts. Indeed, employers are increasingly facing the possibility of double or even triple liability when a harassed employee pursues more than one avenue of recovery. This article will review the traditional background in relation to sexual harassment claims and explore emerging trends in the area of stress-related claims. Specifically, this article examines sexual harassment cases based on traditional civil rights, workers' compensation, and tort claims, and analyzes the current tendency of the courts to impose employer liability in more than one area. Additionally, managerial implications of multiple recovery by a wronged employee are discussed, and suggestions are made regarding ways to avoid these costly claims.

TRADITIONAL CLAIMS

According to a report of the Equal Employment Opportunity Commission (EEOC), in the last quarter of 1991 the EEOC received 1,244 charges of sexual harassment - a 70% increase over the same period a year earlier (Equal Employment Opportunity Commission, 1992). The U.S. Merit Systems Protection Board (1987) released statistics from its survey, showing that 56 percent of the 8,523 workers participating in the survey claimed to have experienced sexual harassment. Of those surveyed who had worked in both public and private organizations, 42 percent believed that sexual harassment was practiced equally in both sectors. This translates into a costly problem for business. The study also estimated that in a two-year period federal agencies lost more than $267 million from job turnovers, absenteeism, and lack of productivity due to sexual harassment. This figure does not include private businesses. The workers who left had to be replaced, and, in most cases, those who replaced them had to be retrained. The Equal Employment Opportunity Commission, the central authority responsible for the administration of Title VII, issued sex discrimination guidelines for the first time in 1980, defining sexual harassment as an illegal form of sex discrimination and outlining employer responsibility for such acts (Guidelines, 1980). Under those guidelines, harassment on the basis of sex is a violation of Section 703 of Title VII. Sexual harassment is: (1) unwelcome sexual advances; or (2) requests for sexual favors; or (3) any other verbal or physical conduct of a sexual nature. Sexual harassment can occur through looks, touches, jokes, innuendoes, gestures, or direct propositions. Such conduct constitutes sexual harassment when (a) submission is made a term or condition of employment; or (b) submission is used as a basis for employment decisions; or (c) the conduct has the purpose or effect of unreasonably interfering with an individual's work performance, or creating an intimidating, hostile, or offensive work environment (Petrocelli and Repa, 1992).

Gases of sexual harassment generally fall into two categories: (1) quid pro quo (literally, Something for something or an exchange), where an employee experiences some sort of detrimental employment action as retaliation for refusing to submit to sexual demands; or (2) hostile environment. where the general work atmosphere is hostile or abusive because of the harassment but the employee does not necessarily experience any detrimental employment action (MacKinnon, 1979). Generally, only supervisors can perpetrate quid pro quo sexual harassment, but hostile environment sexual harassment can be created by supervisors, co-workers, or third parties (Lindemann and Kaude, 1992). The standard for hostile work environment sexual harassment has continued to evolve, as courts have struggled with defining what constitutes behavior that is "sufficiently severe and persistent to create the requisite intimidating, hostile, or offensive work environment" (Wolman, 1988: 258). …

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