Sex in the Workplace
S. Kristine Farmer


Employment lawyers, both in-house and outside counsel, are often asked to determine whether an employees conduct constitutes sexual harassment. The answer to this frequently posed question requires counsel to determine whether the conduct violates company policy, or raises an actionable claim under anti-discrimination laws, what response the company ought to make (if any) and the extent of any potential liability. The elimination of sexual harassment in the workforce is extremely important for every employer. There is a financial as well as a moral imperative to eliminate improper conduct as such conduct can result in extensive monetary liability imposed by juries who determine that sexual harassment has occurred. But eliminating the spectre of sexual harassment is not easy. An important component of harassment prevention is the creation and dissemination of a sexual harassment prohibition policy and reporting procedure. If an employer can demonstrate attempts at prevention and remediation, it might not be found liable for the act of harassment itself.

Nevertheless, attempts to regulate romances, or even attempted romances, run contrary to strong human urges. And even if it were possible, do we really want to live in a society where normal flirtations and courtships are routinely banned from the office? While this question may get one answer from poets and philosophers, it will get a different one from lawyers trying to limit their clients liability.

Background

It is important to be able to recognize sexual harassment before you can begin to enforce laws and policies against it. Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.1 Title VII is the primary federal discrimination statute in the employment field and applies to most employers engaged in interstate commerce with more than fifteen employees, to labor organizations, and to employment agencies.2 Under Title VII, employers may not discriminate on the basis of race, color, religion, sex, or national origin in hiring or discharging employees, or in the terms and conditions of employment.3 The terms and conditions of employment may include, among other things, hiring, compensation, work assignment, promotion, and termination. Although Title VII was part of the extensive civil rights legislation first enacted in the early 1960s, the prohibition against discrimination based on sex was a late addition. It was added to the bill as an amendment offered at the last minute on the floor of the House of Representatives.4 The principal argument in opposition to the amendment was that sex discrimination was sufficiently different from other types of discrimination that it warranted separate legislative treatment.5 This argument was defeated, the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting Title VIIs prohibition against discrimination based on sex.6 However, sexual harassment, in particular, has in recent years become a focal point for Title VII claims.

The Equal Employment Opportunity Commission (EEOC) was established by Title VII and is responsible for its interpretation and enforcement.7 The EEOCs interpretive guidelines provide that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individuals employment, unreasonably interferes with an individuals work performance, or creates an intimidating, hostile or offensive work environment.8

From Meritor Savings Bank v. Vinson9 (1986) through Harris v. Forklift Systems, Inc.10 (1993), the United States Supreme Court has defined what sexual harassment means. Those cases and the interpretive guidelines of the EEOC,11 illustrate two distinct types of sexual harassment.

The more obvious of the two is quid pro quo sexual harassment, which occurs when a beneficial condition of employment is premised upon an employees submission to sexual advances. The elements of this type of sexual harassment are set out in Collins v. Baptist Memorial Geriatric Center.12 The plaintiffs acceptance or rejection of the harassment must be an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment in order to create liability.13 That detriment might be a denial of a raise or promotion, a termination or a constructive discharge where an employee claims that the retaliation made his or her job conditions so intolerable that he/she quits.

Sexual harassment based upon a hostile work environment is more prevalent in the courts. For this type of sexual harassment to be actionable, it must be severe enough to alter the conditions of [the victim]s employment and create an abusive working environment.14 According to case law and the EEOC, a hostile work environment is one that is so pervasive that it materially alters the terms and conditions of employment.15

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

The harasser can be the victims supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harassers conduct must be unwelcome.16

Recent Decisions

Several recent high-profile sexual harassment cases underscore the rapidly developing state of the law in this area. On March 4, 1998, the Supreme Court unanimously held in Oncale v. Sundowner Offshore Services,17 that same-sex sexual harassment is actionable under Title VII.18 This case was brought on appeal from the Fifth Circuit, wherein Oncale, a male oil-rig worker who was part of an eight-man crew that worked on an offshore oil rig in the Gulf of Mexico, brought a Title VII action against his employer to recover for repeated sex-related abuse he endured which he alleged went beyond aggressive horseplay, including a threatened rape. The Fifth Circuit ruled that Oncale, because he is male, did not have a cause of action for same-sex sexual harassment under Title VII and relied upon its decision in Garcia v. Elf Atochem of North America19 as the binding precedent. Garcia was an earlier case in which the Fifth Circuit held that harassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment had sexual overtones. The Court ruled that the actions taken against Garcia could not in any event constitute sexual harassment within the purview of Title VII.20 The Supreme Court believed otherwise and unanimously ruled that same-sex sexual harassment is actionable under Title VII. Prior to Oncale, federal circuit courts were split over whether same sex sexual harassment claims were actionable.21 The Oncale decision resolved these conflicts.

On June 26, 1998, the Supreme Court rendered two decisions regarding sexual harassment. The opinions, both by 7-2 majorities, include new guidelines for establishing liability, and for the first time, the court articulated some measure of what kinds of legal defense might be asserted as an affirmative defense against liability. By exercising reasonable care to prevent and correct [harassment] properly, such as by instituting anti-harassment polices and by showing an employee unreasonably failed to take advantage of such programs, companies can avoid liability except when harassment results in a tangible employment action.22 However, the Court discarded the concepts of quid pro quo and hostile working environment in cases involving supervisors, saying that they were of limited utility.23 Instead, the Court said that in general, employers are vicariously liable for harassment by a supervisor for the reasons that employers have a greater opportunity to guard against misconduct by supervisors than by common workers; employers have a greater opportunity and incentive to screen them, train them, and monitor their performance.24

In Faragher v. City of Boca Raton, Beth Faragher, a ocean beach lifeguard for the City of Boca Raton, brought an action against the city and her immediate supervisors for alleging, among other things, that the supervisors had created a sexually hostile atmosphere at work by repeatedly subjecting Faragher and other female lifeguards to uninvited and offensive touching by making lewd remarks and by speaking of women in offensive terms, and that this conduct constituted discrimination in violation of Title VII. After several incidents, Faragher informed a third supervisor about the alleged sexual harassment. The Supreme Court overturned the Eleventh Circuit decision by holding that an employer is vicariously liable for actionable discrimination of a supervisor. The decision tempered the imposition of the vicarious liability by making it subject to an affirmative defense looking to the reasonableness of the employers conduct as well as that of the plaintiff victim.25 The Courts only discussion prior to this case regarding the standards of employer liability came in 1986 when the Court held in Meritor Savings Bank that traditional agency principles were relevant for determining employer liability.26

In Burlington Northern, Inc. v. Ellerth, the Supreme Court affirmed the Seventh Circuits decision that an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer. The employee need not show that the employer is negligent or otherwise at fault for the supervisors actions.27 In other words, an employee may be able to maintain a cause of action for sexual harassment even when the alleged harassment consisted only of a supervisors empty threats to fire or demote an employee who fails to submit to a sexual demand. However, the Court states that [w]hen no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence;. . . [n]o affirmative defense is available, however, when the supervisors harassment culminates in a tangible employment action.28

There are many lower court decisions making headlines across the country. For instance, in Leibovitz v. New York City Transit Authority,29 the United States District Court for the Eastern District of New York upheld a $60,000 jury verdict in favor of a woman who was never sexually harassed but sued under hostile environment under Title VII because other women in her office were harassed and she was upset about it. This was the first decision of its kind in the country imposing liability to non-victims of harassment although the court cited dicta from the Eighth, Tenth, Eleventh, and D.C. Circuits.30

The difficulty in differentiating between wholesome romance and offensive sexual harassment is that it is always determined in retrospect, through a veil of human emotions, observations, and stereotypes. The bounds of propriety and good taste are very difficult for a jury to demarcate two years after the fact. Employers must walk a tightrope between an emotionally rich environment and a legally prohibited one. A proper sexual harassment policy that is consistently enforced can help maintain that fine distinction.

S. Kristine Farmer is a litigation paralegal with the Law Offices of Tommy R. Rodgers, P.C. She has worked within the areas of labor/employment law, complex commercial litigation and family law since 1990. She received her baccalaureate degree in Labor Management from the University of North Texas in 1992 and became a Board Certified Legal Assistant in Civil Trial Law by the Texas Board of Legal Specialization in 1997. Kristine is the Director for District 2 (Dallas) and is currently serving as the Divisions Parlimentarian.


1 42 US.C. 2000e, et seq.
2 Id 2000e.
3 Id 2000e-2(a)(1).
4 110 Cong Rec. 2577-2584 (1964).
5 See id at 2577 (statement of Rep. Celler quoting letter from United States Dept of Labor); id. at 2584 (statement of Rep. Green).
6 Meritor Sav Bank v. Vinson, 477 U.S. 57, 64 (1986).
7 42 US.C. 2000e-5.
8 EEOC, Facts about Sexual Harassment (Jan 15, 1997) http://www.eeoc.gov/facts/fs-sex.html.
9 Meritor, 477 US. at 57.
10 Harris v Forklift Sys., 510 U.S.______ (1993).
11 29 CF.R. 1604, et seq.
12 Collins v Baptist Memorial Geriatric Ctr., 937 F.2d 190 (5th Cir. 1991).
13 Id at 196.
14 Meritor 477 US. at 67(quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
15 29 CF.R. 1604.11(a).
16 See EEOC, supra note 8
17 Oncale v Sundowner Offshore Serv., 118 S. Ct. 998 (1998).
18 Id
19 Garcia v Elf Atochem of N. Am., 28 F.3d 466 (5th Cir. 1994).
20 Id
21 Compare Doe v Belleville, 119 F.3d 563 (7th Cir. 1997) (same-gender sexual harassment permissible under Title VII even if harassing individual is heterosexual) with McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996) (same-gender sexual harassment claim permissible under Title VII only if the harassing individual is homosexual).
22 Faragher v Boca Raton, No. 97-282 (U.S. June 26, 1998)
http://supct.law.cornell.edu/supct/html/97-282.ZS.html.
23 Id
24 Id; see Meritor, 477 U.S. at 73.
25 Faragher v Boca Raton, No. 97-282 (U.S. June 26, 1998) http://supct.law.cornell.edu/supct/html/97-282.ZS.html.
26 Meritor, 477 US. at 73.
27 Burlington Northern Inc v. Ellerth, No. 97-569 (U.S. June 26, 1998) http://supct.law.cornell.edu/supct/html/97-569.ZS.html.
28 Id
29 Leibovitz v New York City Transit Auth., No. 95-CV-3860, (E.D.N.Y. May 5, 1998).
30 Id

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