Sexual Harassment in the Workplace: A Review of the Legal Rights and Responsibilities of All Parties

By Robinson, Robert K.; Allen, Billie K. et al. | Public Personnel Management, Spring 1993 | Go to article overview

Sexual Harassment in the Workplace: A Review of the Legal Rights and Responsibilities of All Parties


Robinson, Robert K., Allen, Billie K., Franklin, Geralyn McClure, Duhon, David L., Public Personnel Management


Sexual behavior in the workplace is not a recent phenomenon. But, the concept of sexual harassment is of recent origin. Not until the 1970's did workers, primarily women, find legal remedies to what they considered harmful on-the-job behaviors, now defined as sexual harassment.

The first accounts of sexual harassment were journalistic reports and case studies in the mid 1970's (Gutek, 1985). These were followed by two popular books on the subject, Sexual Shakedown: The Sexual Harassment of Women on the Job (Farley, 1978) and Sexual Harassment of Working Women: A Case of Sex Discrimination (MacKinnon, 1979). By 1980, the concept of sexual harassment was fairly well defined and codified in Federal and State regulations, most of which have their basis in the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of 1964, as amended, broadly prohibits employer and union discrimination based on sex with respect to "compensation, terms, conditions, or privileges of employment" (42 U.S.C. 2000e-2(a) (1)). Initially, most courts held that sexual harassment with no direct economic consequences did not affect a "term or condition" of employment. In recent years, the courts have greatly expanded the definition of and scope of unlawful sexual harassment.

Legal Background

The courts were somewhat reluctant to find actionable sexual harassment claims in the early cases. As an example, in Corne v. Bausch and Lomb, Inc. (390 F. Supp. 161 (D. Ariz. 1975)), the court ruled that a supervisor's sexual advances toward female employees constituted merely a "personal proclivity, peculiarity, and mannerism" unrelated to the nature of the employment. Therefore, it did not violate Title VII.

It was not until 1977 that sexual harassment was clearly shown to be illegal under Title VII. In Barnes v. Costle (561 F.2d 983 (D.C. Cir. 1977)), the Court of Appeals for the District of Columbia ruled that Paulette Barnes had been discriminated against by her employer in violation of Title VII. She had been terminated from her job as a payroll clerk because she had refused the sexual advances of her supervisor, thus affecting the "terms, conditions, or privileges of employment."

In 1980, the Equal Employment Opportunity Commission (EEOC) Guidelines on Discrimination Because of Sex (29 C.F.R. Section 1604.11; hereinafter referred to as the 1980 EEOC Guidelines) were issued. The 1980 EEOC Guidelines took the position that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute unlawful sexual harassment when one of three situations exists:

1) Submission to the conduct is made a term or condition of employment; or

(2) Submission to or rejection of such conduct is used as the basis for an employment decision affecting the employee; or

(3) Such conduct has the purpose or effect of either (i) unreasonably interfering with an individual's work performance, or (ii) creating an intimidating, hostile, or offensive working environment.

Examples of prohibited conduct included the following: sexual inquiries, jokes, epithets, derogatory comments, offensive touching, physical interference with the individual's movements, the use of sexually explicit photographs on the job, and the requirement that the affected individual wear sexually revealing clothing.

The 1980 EEOC Guidelines impose a very broad burden on employers as long as the conduct occurs on the job premises or under circumstances subject to the employer's control. Still, the duties placed on employers will vary depending on the particular individual accused (alleged harasser) and the charging party (alleged harassee).

The 1980 EEOC Guidelines impose strict liability on employers when the harassment is done by a supervisor. Specifically, liability is imposed regardless of whether the specific acts were forbidden or whether the employer knew or should have known of their occurrence. …

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