Sexual harassment - Misplaced Pages

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Abuse

Types

Difficulties and criticisms

Though the phrase "sexual harassment" is generally acknowledged to include clearly damaging and morally deplorable behavior, its boundaries can be broad and controversial, depending on each individual's opinion of what harassment is. Accordingly, misunderstandings can abound. Typical sexual harassment behaviour includes unwanted touching of a co-worker's private parts, lewd comments, talk about gender superiority, demands for sexual favors, sexual jokes, etc.. However, critics such as Wendy McElroy argue that the legal guidelines are too broad and vague. Some companies have reported that they have had to fire employees (after a co-worker has complained of "sexual harassment") for such actions as telling the complaining co-worker how good he or she looks for that co-worker's date with another person, or for simply handing what seemed, to the fired employee, to be just a harmless compliment. Moreover, sexual harassment law has also been highly criticized by experts, such as Alan Dershowitz and Eugene Volokh, for imposing on the right to free speech.

The situation with sexual harassment is further complicated by the fact that an individual's career can easily be destroyed either when they become the target of sexual harassment, or if they are accused of harassment. Employers need to be careful to protect the rights of both complainants and individuals who have been the subject of complaints, as both may find themselves in vulnerable positions, and the rights and wrongs of a case may not be straightforward. Those who have been accused must be assured that their rights will be fully protected, and that accusation will not automatically be taken as proof. They must also be counselled not to take matters into their own hands if they believe themselves unjustly accused, and that any retaliation will be viewed seriously, irrespective of the merit of the original complaints.

Varied circumstances

Sexual harassment can occur in a variety of circumstances:

The harasser can be the victim's supervisor, a client, a co-worker, a teacher or professor, a student a schoolmate, or a stranger.

The victim does not have to be the person directly harassed but can be anyone who finds the behavior offensive and is affected by it.

While adverse effects on the victim are common, this does not have to be the case for the behavior to be unlawful.

The victim can be male or female. The harasser can be male or female.

The harasser does not have to be of the opposite sex.

The harasser may be completely unaware that their behavior is offensive or constitutes sexual harassment, or they may be completely unaware that their actions could be unlawful.

However, one constant is that the harasser's behavior must be unwelcome.

(Adapted from the U.S. Equal Employment Opportunity Commission)

Bold text==Varied guidelines and burdens of proof==

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EEOC definition

In 1980 the Equal Employment Opportunity Commission produced a set of guidelines for defining and enforcing Title VII (in 1984 it was expanded to include educational institutions). The EEOC defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual's employment,

2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or

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

1. and 2. are called "quid pro quo" (Latin for "this for that" or "something for something"). They are essentially "sexual bribery", or promising of benefits, and "sexual coercion".

Type 3. known as "hostile work environment," is by far the most common form. This form is less clear cut and is more subjective.

Prima facie case for sexual harassment, quid pro quo

To be quid pro quo it must be proven that "the employee's reaction to the harassment complained of affected tangible aspects of the employee's compensation or terms, conditions or privileges of employment." This was originally the only recognized form of sexual harassment.

Prima facie case for sexual harassment, hostile environment

Where a hostile environment is alleged, the legality of behaviors must be determined on a case by case basis. Such a claim focuses on the working conditions that must be endured by the victim as a condition of employment, rather than on tangible job changes. To establish whether the situation is actionable the "totality of circumstances" must be weighed with an eye to determining "that the harassment affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment" (Peiliciotti, 1988).

One law firm with expertise in this field concludes that, to establish a prima facie case for hostile work environment sexual harassment, the alleged victim must prove the following five elements:

1. He or she suffered intentional discrimination because of his/her sex.

2. The discrimination was pervasive and severe.

3. The discrimination detrimentally affected him or her.

4. The discrimination would detrimentally affect a reasonable person of the same sex.

5. Management knew about the harassment, or should have known, and did nothing to stop it.

In a case like this, the pervasiveness and severity of the conduct have an inverse relationship to each other. For example, a single act may be considered sexual harassment if it is very severe (touching sexual areas of a person's body). Less severe conduct, such as crude language, romantic invitations, or extended glares, can still be sexual harassment if it happens several times or regularly, particularly if the person on the receiving end of this behavior makes clear that it is not welcomed.

Definitions in non-US jurisdictions

Jurisdictions outside the US have adopted their own definitions of sexual harassment, intended to cover essentially the same forms of undesirable conduct. In federal systems of government, there may be different definitions in different jurisdictions within the same country.

A typical definition is that used at the federal level of government in Australia, contained in the Sex Discrimination Act 1984 (Cth). This states that a person sexually harasses another person (the person harassed ) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

The reference to intimidation is broad enough to include cases of "quid pro quo" harassment, but the other words ("offended" and "humiliated") go further to capture a wide range of problematic sexual conduct.

Retaliation and Backlash

Retaliation against a victim is very common, particularly a complainant. Victims who speak out against sexual harassment are often labeled troublemakers, and risk hostility and isolation from colleagues, supervisors, teachers, or fellow students. They risk being given negative evaluations or low grades, having their projects sabotaged, being denied opportunities, and other actions against them which undermine their ability to do their work or advance at work or school. Retaliation can even involve further sexual harassment. As in cases of rape or sexual assault, the "victim" often becomes the "accused," with their appearance, private life, and character likely to fall under intrusive scrutiny and attack. A professor or employer accused of sexual harassment, or who is the colleague of a perpetrator, can sometimes use their power to see that a victim is never hired again, or never accepted to another school.

Women are not necessarily sympathetic to female complainants who have been sexually harassed. Internalized sexism, along with jealousy over the sexual attention towards the victim, may encourage women to react with as much hostility towards the complainant as male colleagues. Fear of being targeted for harassment themselves may also cause women to respond with hostility. For example, when Lois Jenson filed her lawsuit against Eveleth Taconite Co., the women placed a hangman's noose above her workplace, and none of them would ride in the elevator with her. (Many of these women later joined her suit.) Women may even project hostility onto the victim in order to bond with their male coworkers and build trust.

One woman who was interviewed by Helen Watson, a sociologist, reported that, "Facing up to the crime and having to deal with it in public is probably worse than suffering in silence. I found it to be a lot worse than the harassment itself."

Prima facie case for retaliation

Retaliation for complaining or filing a grievance is as illegal as the harassment itself, but also as difficult to prove.

To establish a prima facie case of retaliation, a person must show by a preponderance of evidence that

1. The person engaged in a protected activity known to the employer.

2. The employer thereafter subjected the complaining party to an adverse decision.

3. There was a causal link between the protected activity and adverse employment decision.

Protected activities usually encompass making discrimination and harassment activities known to management, participating in Managing Diversity programs, assisting another employee with a discrimination complaint and other similar activities.

Effects of sexual harassment

Some common effects of sexual harassment and the (often) accompanying retaliation:

Decreased work or school performance; increased absenteeism
Loss of job and income; having to drop courses, change academic plans, or leave school
Having one's personal life offered up for public scrutiny --the victim becomes the "accused," and their dress, lifestyle, and private life will often come under attack. (Note: this rarely occurs for the perpetrator.)
Being objectified and humiliated by scrutiny and gossip
Becoming publicly sexualized
Defamation of character and reputation
Loss of trust in environments similar to where the harassment occurred
Loss of trust in the types of people that occupy similar positions as the harasser or their colleagues
Extreme stress upon relationships with significant others, sometimes resulting in divorce; extreme stress on peer relationships, or relationships with colleagues
Weakening of support network, or being ostracized from professional or academic circles (friends, colleagues, or family may distance themselves from the victim)
Having to relocate to another city, another job, or another school
Loss of references/recommendations

Some of the psychological and health effects that can occur in someone who has been sexually harassed are: depression, anxiety and/or panic attacks, traumatic stress; post-traumatic stress disorder (PTSD), sleeplessness and/or nightmares, shame and guilt, difficulty concentrating, headaches, fatigue or loss of motivation, stomach problems, eating disorders (weight loss or gain), feeling betrayed and/or violated, feeling angry or violent towards the perpetrator, feeling powerless or out of control, increased blood pressure, loss of confidence and self esteem, withdrawal and isolation, suicidal thoughts; suicide.

Backlash and retaliation for complaining about the harassment can further aggravate the effects. For example, in 1995, Tyler Blizzard committed suicide after chronic sexual harassment by her bosses and coworkers. (Her family was later awarded 6 million dollars in damages.)

References

MacKinnon, Catharine A. Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven, Yale University Press, 1979.
MacKinnon, Catharine A. and Reva B. Siegel, eds.,. Directions in Sexual Harassment Law. New Haven, Yale University Press, 2003.
Pellicciotti, Joseph M. Title VII Iiability for sexual harassment in the workplace. Alexandria, Va. International Personnel Management Association, 1988.
Watson, Helen. "Red herrings and mystifications: Conflicting perceptions of sexual harassment," in Brant, Clare, and Too, Yun Lee, eds., Rethinking Sexual Harassment. Boulder, Colorado, Pluto Press, 1994.

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