Sexual Harassment

By Muhl, Charles J. | Monthly Labor Review, July 1998 | Go to article overview

Sexual Harassment


Muhl, Charles J., Monthly Labor Review


In 1986, in Meritor Savings Bank v. Vinson,(1) the U.S. Supreme Court held for the first time that unwelcome sexual advances at work create a hostile work environment which constitutes gender discrimination under Title VII of the 1964 Civil Rights Act. Before 1998, that landmark ruling was followed by only one other Supreme Court decision on the issue--Harris v. Forklift Systems,(2) in which the Court declared that the psychological well-being of a plaintiff need not be seriously affected in order for the plaintiff to demonstrate that an injury has been suffered in violation of Title VII.

In 1998, the Supreme Court revisited the definition of sexual harassment in four separate cases, answering the questions of (1) whether a claim of same-sex sexual harassment may be brought, (2) what legal standard should be applied to determine whether employers are liable for sexual harassment committed by workers with supervisory power, and (3) whether a claim of quid pro quo ("this for that") sexual harassment may proceed without showing that the employee submitted to sexual advances or was harmed for refusing such advances.

In Oncale v. Sundowner Offshore Services, Inc.,(3) the High Court ruled that Title VII prohibits sexual harassment between members of the same sex. The legal standards governing same-sex claims, the Court held, are identical to those used to evaluate a claim of sexual harassment by a member of the opposite sex. Justice Anton Scalia reiterated the standards for evaluating such claims: "The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'"(4) The Oncale opinion reasserts that this determination must account for the social context in which a particular behavior occurs and is experienced by the individual who is the target of the alleged harassment. Courts must distinguish between simple teasing and roughhousing among members of the same sex, which is not sexual harassment, and "conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive."(5) Title VII, said the Court, forbids only behavior that is "so objectively offensive as to alter the `conditions' of the victim's employment."(6)

The plaintiff, Joseph Oncale, worked as a roustabout on an oil rig in the Gulf of Mexico. He claimed that male coworkers forcibly subjected him to sex-related, humiliating actions by two supervisors in front of other crew members. He further alleged that, despite reporting these incidents to Sundowner management, the company did not take any corrective action.

The Court's decision in Oncale reversed an earlier holding by the fifth circuit, which ruled that Title VII provided no remedy to a plaintiff claiming same-sex harassment. Other State and Federal courts had taken a variety of stances on this legal question, which provided the impetus for the Court to grant certiorari and clarify the question.

In Faragher v. City of Boca Raton,(7) the Court held that employers are subject to vicarious--or strict--liability for sexual harassment caused by a supervisor. Such liability can be found where a hostile work environment is created through sexual abuse and threats by a supervisor with immediate or successively higher authority over an employee or where a supervisor takes a "tangible employment" action (for example, termination, demotion, or loss of pay) against an employee after a sexual advance is refused. If no such action is taken, an employer may raise a defense to strict liability by showing that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and that the employee failed to take advantage of any preventive or corrective opportunities provided by the employer to otherwise avoid harm. The Faragher case was brought under Title VII of the Civil Rights Act of 1964.

Faragher worked as a part-time lifeguard for Boca Raton from 1985 to 1990. …

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