Sexual Harassment

Understanding Sexual Harassment

Being the victim of Sexual Harassment can destroy a career. There’s no place for that type of behavior, and there’s certainly no place for that kind of behavior in the workforce.

Understanding Sexual Harassment

Memphis & St. Louis Sexual Harassment Attorney

As an employee, you are covered by a complex and often confusing array of legal rights under federal and state laws.

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment claims fall into two categories:

Quid Pro Quo – where a supervisor or someone in an authority position requests sex or a sexual relationship in exchange for favors such as a promotion or raise, or to avoid punishment at work or loss of employment.
Hostile Workplace Environment – where the victim is required to tolerate inappropriate behavior or conduct such as demeaning or sexual photographs, jokes, or threats that create an intimidating and offensive work environment.

As employment law attorneys, we understand the complicated harassment laws that protect you and how to enforce them on your behalf. Let us help you determine your next steps with a confidential initial consultation.

What is Sexual Harassment?

The phrase “sexual harassment” was coined in 1975, by a group of women at Cornell University. A former employee of the university, Carmita Wood, filed a claim for unemployment benefits after she resigned from her job due to unwelcome touching from her supervisor. Cornell had refused Wood’s request for a transfer, and denied her the benefits because the university was of the view that she had quit for “personal reasons.” Wood together with activists at the university’s Human Affairs Office, formed a group called Working Women United. At a Speak Out event hosted by the group, secretaries, mailroom clerks, filmmakers, factory workers and waitresses shared their stories, revealing that the problem extended beyond the university setting. The women spoke of masturbatory displays, threats and pressure to trade sexual favors for promotions.
The issue soon made the news, especially after a widely reprinted New York Times article used the phrase “sexual harassment” in its headline that August. Moreover, a 1976 survey by Redbook showed that 80% of respondents had encountered sexual harassment on the job.

Title VII of the Civil Rights Act of 1964 is a Federal Law that prohibits discrimination in employment based on sex, race, color, national origin, and religion, and it applies to employers with 15 or more employees, including federal, state, and local governments. Although Title VII outlawed discrimination of all sorts, it was not until the next decade that sexual harassment was recognized as a discriminatory action falling within the ambit of Title VII.

The efforts of these women paid off and in 1980, the Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws (some states have their own laws, in addition), issued specific guidelines on sexual harassment. The EEOC defined sexual harassment in its rules as: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:· Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or · Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or · 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.

With this definition, the EEOC differentiated between what have now been established as the two pathways to sexual harassment claims; Quid Pro Quo: Sexual harassment that occurs when a supervisor or one in an authority position requests sex, or a sexual relationship, in exchange for not firing or otherwise punishing the employee, or in exchange for favors, such as promotions or raises; and Hostile Work Environment: Sexual harassment that occurs through the presence of demeaning or sexual photographs, jokes or threats. The inappropriate behavior or conduct must be so pervasive as to, as the name implies, create an intimidating and offensive work environment.

While it is easy to outline what is meant by the term sexual harassment, it is very difficult to apply that definition to a set of facts. Court opinions can seem inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with very similar facts. The courts’ hesitation to apply
the term can easily be deduced by the fact that it took twelve years for quid pro quo to be recognized by the courts. In 1976 in Williams v. Saxbe, a district court in Washington, D.C., finally ruled that sexual harassment is a form of unlawful sex discrimination. A year later, a higher court, the D.C. court of appeals, one of the most influential courts in the country, concurred. In Barnes v. Costle, the court ruled that having a job be “conditioned upon submission to sexual relations” was illegal.
By 1977, three court cases confirmed that a woman could sue her employer for harassment under Title VII of the 1964 Civil Rights Act, using the EEOC as the vehicle for redress. The Supreme Court upheld these early cases in 1986 with Meritor Savings Bank v. Vinson, which was based on the complaints of Mechelle Vinson, a bank employee whose boss intimidated her into having sex with him in vaults and basements up to fifty times. Vinson was African American, as were many of the litigants in pioneering sexual harassment cases; some historians suggest that the success of racial discrimination cases during these same years encouraged women of color to vigorously pursue their rights at work.

Since 1991 and the Thomas hearings, the issue has continued to evolve. For example, in 1998, the Supreme Court ruled that same-sex harassment was also unlawful at work. It is well accepted now that gender and sexual orientation do not determine whether one is the perpetrator or victim of harassment. But, in spite of legal victories and the impact of well-known cases like Anita Hill’s, sexual harassment remains a problem today. Recent incidents have highlighted its prevalence in many professional industries, however, this does not necessarily mean that the campaign against harassment has failed; on the contrary, it suggests that behavior that was once tolerated is now frequently exposed as discriminatory and harmful—thanks in large part to Hill and the women who came before her.

Breaking Down the Existing Law: Probable Requirements for a Successful Claim

Hostile or Abusive Work Environment: The Supreme Court first recognized the validity of “hostile or abusive work environment” claims under Title VII in Meritor Sav. Bank, FSB v. Vinson. The Meritor Court held “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” However, the Court recognized that “not all workplace conduct that may be described as harassment ‘affects a term, condition, or privilege’ of employment within the meaning of Title VII.” Therefore, the Court required that for sexual harassment to be actionable, it must be unwelcome and “sufficiently severe or pervasive ‘to alter the conditions of the victim’s employment and create an abusive working environment.”

Seven years later, the Supreme Court addressed the issue of whether the conduct “must seriously affect an employee’s psychological well-being or lead the plaintiff to suffer injury” for the plaintiff to prove hostile environment harassment. In Harris v. Forklift Systems, the Supreme Court rejected the approach taken by three circuits which had required such a serious effect, since “concrete psychological harm [is] an element Title VII does not require.” Instead, the Harris Court adopted a requirement that the plaintiff must show a defendant’s conduct to be both objectively and subjectively hostile or abusive: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment- an environment that a reasonable person would find hostile or abusive- is beyond Title VII’s purview.

Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. The Harris Court recognized that this determination “is not, and by its nature cannot be, a mathematically precise test.” Nonetheless, the Court set forth various analytical factors: whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Unwelcomeness Requirement

For conduct to constitute sexual harassment, it must be unwelcomed by the victim. Conduct is unwelcome if the employee did not solicit or incite it and if the employee regarded the conduct as undesirable or offensive. As to whether a plaintiff solicited or incited the harassing conduct, a plaintiff’s words, deeds, and deportment can be examined to determine whether the objected to conduct was unwelcome and should have been perceived as such by the harasser. However, the context of the plaintiff’s conduct must always be examined. For example, in Carr v. Allison Gas Turbein Division, General Motors Corporation, the Seventh Circuit held that a plaintiff did not welcome her co-workers’ harassing conduct despite her use of invective and “unladylike” behavior because when the circumstances were viewed in context, it was clear that her use of vulgar language was an effort to be “one of the boys” and that it was clear that she did not incite or solicit her coworkers’ harassing behavior.

In contrast, in Reed v. Shepard the Seventh Circuit found that a plaintiff welcomed the sexual conduct at issue because the evidence showed she was enthusiastically receptive to sexually suggestive jokes and activities and frequently initiated sex-based conversations herself. It is important to look at the context also in cases where a male plaintiff is subject to the advances of a woman. While stereotypically men may always welcome a woman’s advances, the courts have held this not to be true, and that, looking at the context, it is possible to determine that a given man did not welcome the advances of a woman.

The Ninth Circuit examined the full context of the situation in EEOC v. Prospect Airport Services and held that the conduct was unwelcome. The court’s explanation of its rationale is illustrative: It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. Lamas (the employee) suggested this might be true of other men (the district court decision noted that Lamas “admits that most men in his circumstances would have ‘welcomed’” her advances). But that is a stereotype and welcomeness is inherently subjective, since the interest two individuals might have in a romantic relationship is inherently individual to them, so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions. It would not make sense to try to treat welcomeness as objective, because whether one person welcomes another’s sexual proposition depends on the invitee’s individual circumstances and feelings. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not. He told her expressly and plainly that he did not want a relationship with her. He explained his troubled response plausibly, as stemming from his Christian beliefs and his recent widowhood.

However, some recipients of sexual advances doubtless have difficulty coming up with a tactful way to refuse them without damaging their ability to get along at work, so unwelcomeness may in some cases be unclear.

To further clarify the courts’ stance on the matter in Burns v. McGregor Electronic Industries, the fact that a plaintiff posed naked for a magazine that was distributed nationally did not constitute inviting or soliciting sexual advances.

It will not be wrong to say that welcomeness is not synonymous with voluntariness. An employee who voluntarily participates in the sexual conduct at issue may still not welcome the conduct. As the Meritor Court stated: “The correct inquiry is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” Thus, if an employee voluntarily engages in sexual relations with a harasser out of fear of losing her job, the harasser’s sexual advances are unwelcome.
Harassment was “Because of Sex”: The Supreme Court has emphasized the “but for” pleading requirement for harassment claims: In Oncale v. Sundowner Offshore Serv.

It was established that “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination . . . because of . . . sex.’” The harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. The Oncale court made clear that a harasser motivated by general hostility to the presence of a certain sex in the workplace would violate Title VII. Moreover, The Oncale Court expressly held “that nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”

Therefore, Title VII, and state anti-discrimination statutes modeled after Title VII, reach same-sex harassment, regardless of whether the harassment arose from “proposals of sexual activity” or from “general hostility to the presence of women in the workplace.”

Moreover, a prior romantic relationship does not preclude a plaintiff from bringing a sexual harassment claim based on conduct by the former romantic partner, but in cases where the plaintiff and harasser had a previous romantic or sexual relationship, the plaintiff must still show that the harassment was because of sex and not simply because of personal animosity. In Galloway v. General Motors Serv. Parts Operations, the plaintiff alleged that a co-employee, with whom she had a prior romantic relationship, sexually harassed her by repeatedly calling her a “sex bitch.”

The Seventh Circuit affirmed the district court’s grant of summary judgment in favor of the employer, holding that the facts showed that the co-employee did not harass the plaintiff “on the basis of her sex” but that the inappropriate conduct occurred “in the context of a failed sexual relationship,” and the conduct “reflected … a personal animosity arising out of the failed relationship rather than anything to do with” the plaintiff being a woman.

However, in Forrest v. Brinker Int’l Payroll Co, a case involving a plaintiff who claimed a co-worker with whom she had an on-again, off-again romantic relationship, created a hostile work environment, the First Circuit reversed the district court’s finding that the plaintiff offered evidence only of personal animosity and was insufficient to survive summary judgment. The First Circuit stressed that what has been held to be gender-based harassment in other cases may just as well constitute gender-based harassment when the parties had a previous romantic relationship. In this case, the Forrest court concluded that the use of sexually degrading, gender-specific epithets with which the former boyfriend barraged Ms. Forrest at work constituted harassment based on sex.

Similarly, in Green v. Administrators of the Tulane Educ. Fund, the court held that if a supervisor and an employee previously had a consensual relationship, which was broken off by the employee, and the employee rejected the supervisor’s attempt to renew the relationship, upon which the supervisor commenced harassing the employee, the employee can maintain a hostile work environment claim notwithstanding their prior relationship. The Fifth Circuit agreed with the district court’s application of Oncale to find that since “it was only after the relationship ended that Richardson began to harass her. This fact alone supports a jury’s inference that he harassed her because she refused to continue to have a casual sexual relationship with him.”

Same-Sex Harassment: In La Day v. Catalyst Tech., Inc, the Fifth Circuit applied Oncale to hold that same-sex harassment could be actionable under Title VII where the conduct constituted discrimination because of sex, where the harasser was gay and made advances upon the plaintiff. Critically, the plaintiff could show that the harasser made sexual advances to both the victim and to other employees. Further, the harassment was not in the nature of “male-on-male horseplay,” but was so severe and pervasive as to constitute a hostile work environment in Nichols v. Azteca Restaurant Enters, Antonio Sanchez, one of the three plaintiffs, alleged that he was repeatedly taunted by his male co-workers and a supervisor because, in essence, he did not act like a man.

Specifically, his co-workers and a supervisor: (1) “Repeatedly referred to Sanchez in Spanish and English as ‘she’ and ‘her;’” (2) “Mocked Sanchez for walking and carrying his serving tray ‘like a woman;’” (3) “Taunted him in Spanish and English, as, among other things, a ‘f*****’ and a ‘f****** female w****;’” and (4) “Derided [him] for not having sexual intercourse with a waitress who was his friend.”

Critically, “no witness, including the supervisor accused of participating in the harassment, testified to the contrary.” The Ninth Circuit agreed that Mr. Sanchez was discriminated against based on his sex because he failed to conform to a male stereotype. The Ninth Circuit applied Price Waterhouse v. Hopkins, which held that Title VII was violated where the employer discriminated against a female employee who did not conform to sexual stereotypes of how women should behave, to hold that Title VII is similarly violated where a male employee is discriminated against for not conforming to stereotypes of how men should behave. The Ninth Circuit, in an en banc decision, held that essentially all same-sex harassment can be actionable under Title VII if it involves physical assault.

In EEOC v. Grief Bros. Corp., a district court in New York held that a gay employee (Sabo) who was repeatedly taunted and harassed by his co-workers who did not believe or know that he was gay could, in fact, state a Title VII sexually hostile work environment claim. Critical to the resolution of the Title VII harassment claim was the deposition testimony of the harassing co-workers, who testified that they “did not know that he was a homosexual, nor did they believe that he was.” As a result, the court denied the defendant’s motion for summary judgment, because “there is sufficient evidence in the record from which a jury could find that Sabo was not harassed because he is a homosexual, but rather, was harassed because he is a male. Under Price Waterhouse and Oncale, Sabo’s “non-conformance with gender stereotypes” meant that the resulting harassment of him was actionable under Title VII.

Transgender Harassment: Courts have found that the category of “transgender” is not a protected category under Title VII in and of itself. It was held in Etsitty v. Utah Transit Auth., that “This court agrees with… the vast majority of federal courts to have addressed this issue and concludes discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII”.

Nevertheless, discrimination and harassment based on the plaintiff’s failure to fit into gender stereotypes or norms is actionable under Title VII. In Smith v. City of Salem, Ohio, the Sixth Circuit held that an employee who alleged that discrimination occurred because the employee was undergoing treatment for “gender identity disorder” which resulted in the employee’s appearance becoming more feminine, could state a Title VII claim for gender discrimination. Here, the co-workers “began questioning him about his appearance and commenting that his appearance and mannerisms were not ‘masculine enough,’” and a supervisor met with the city’s attorney “with the intention of using Smith’s transsexualism and its manifestations as a basis for terminating his employment” through requiring the plaintiff “to undergo three separate psychological evaluations” which they hoped would lead to his resignation or refusal to comply, the latter of which would be grounds for terminating his employment for insubordination.

The Sixth Circuit agreed that, under Price Waterhouse, Azteca Restaurants and similar gender stereotyping cases, Mr. Smith had stated a case for sex stereotyping and gender discrimination based on “his failure to conform to sex stereotypes concerning how a man should look and behave.”

In another case, Barnes v. City of Cincinnati, the Sixth Circuit drew upon Smith and held that a pre-operative male to female transsexual who failed the probationary period required to become a police sergeant was a member of a protected class when he alleged discrimination on the basis of a failure to conform to gender stereotypes. The court stated, “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination irrespective of the cause of that behavior; a label, such as “transsexual” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his gender non-conformity.” Although Smith and Barnes did not involve
harassment claims, the conduct may have been sufficient to bring such claims, based on the co-workers’ verbal and physical conduct.

Remedies Available: A successful claim under Title VII Remedies for employment discrimination would call for compensation for the victim.

In cases where the court finds discrimination against the plaintiff, the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never taken place.

The types of relief available to the victim will purely depend upon the discriminatory action and the effect it had on the victim. For example, if someone is not selected for a job or a promotion because of discrimination, the remedy may include placement in the job and/or back pay and benefits the person would have received had the discrimination not taken place. The employer also will be required to stop any discriminatory practices and take steps to prevent discrimination in the future. Moreover, a victim of discrimination also may be able to recover attorney’s fees, expert witness fees, and costs of the court.

Remedies awarded by courts in matters of sexual harassment and/or discrimination may include compensatory and punitive damages. These damages as remedies may be awarded in cases involving intentional discrimination based on a person’s race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, or genetic information.

Compensatory damages compensate victims for out-of-pocket expenses arising due to the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life). Whereas, punitive damages may be awarded to punish an employer who has committed an especially malevolent or reckless act of discrimination.

It is important to state here the financial limits on compensatory and punitive damages. These limits are put in place to ensure that the final amount is in line with the defendant’s economic conditions and/or affluence. These limits vary depending on the size of the employer:
For employers with 15-100 employees, the limit is $50,000.
For employers with 101-200 employees, the limit is $100,000.
For employers with 201-500 employees, the limit is $200,000.
For employers with more than 500 employees, the limit is $300,000.

In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to “liquidated damages.”

Liquidated damages include monetary compensation for a loss, detriment, or injury to a person, awarded by a court judgment or by a contract stipulation regarding breach of contract.
These may be awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded to the victim.

What to do if you think you have been harassed?

One of the most pertinent questions that arise while addressing sexual harassment claims is can one incident of harassment or offensive behavior constitute sexual harassment? The answer to this question is that it depends on case to case. In quid pro quo cases, a single sexual advance may constitute harassment if it is linked to the granting or denial of employment or employment benefits.

In contrast, unless the conduct is quite severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally are not sufficient evidence of a hostile environment. A hostile-environment claim usually requires proof of a pattern of offensive conduct. Nevertheless, a single, unusually severe incident of harassment may be sufficient to constitute a Title VII violation; the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical.
It is important to remember here that each situation is different, and you should take the steps that make sense in your case.
The first thing to do, however, is to consult your employee handbook or policies. If your employer has a sexual harassment policy in place, follow it. Put complaints in writing. Take notes on the harassment and be specific in your details. It is important to note the time and place of each incident, what was said and done, and who witnessed the actions.
If you feel safe speaking directly to the person harassing you, explain to them what behavior is bothering you. Name the behavior and be specific. Tell the harasser that their attention or behavior is bothering you and ask the harasser to stop the behavior.

However, if you do not feel comfortable speaking directly to the person harassing you, go directly to your supervisor or human resources department. Tell your supervisor about the behavior and the steps you have taken to address it.
If you still feel unsafe or dissatisfied, you can file a complaint with the Equal Employment Opportunity Commission. If you believe you have a Title VII claim, you have the right to file a discrimination complaint with the EEOC, the federal agency charged with enforcing many anti-discrimination laws.

However, it is important that you don’t wait to file your complaint. In most cases victims of sexual harassment have 180 days- that is six months from the date of the discriminatory activity to file a discrimination charge with the EEOC in order to preserve your rights. You do not need an attorney to file a complaint with the EEOC. The EEOC’s website offers instructions on filing a charge.

If you are unsure regarding the filing of an EEOC charge or making a formal complaint to your employer you may simply do the following; Keep a record of the discriminatory practices you believe are taking place; Check your company’s employee handbook. Your company may have an Equal Employment Opportunity Officer or another way for you to file an internal complaint. For instance, some companies offer mediation or other tools to resolve problems; Most importantly, keep doing a good job and keep a record of your work. Keep copies at home of your job evaluations and any letters or memos that show that you do a good job at work.

Furthermore, seek support from friends and family. Harassment at work is a difficult thing to face alone, and the process of fighting harassment can be very stressful. You can also contact the EEOC to speak with a counselor about your legal rights whether you choose to file a claim or not. The EEOC may investigate and/or offer mediation services to help resolve the complaint.

In case you do decide to file a complaint, the EEOC will notify your employer that you have filed a charge and will begin an investigation into your complaint. The EEOC may then a take a number of different paths.

First, the EEOC may attempt to settle your complaint or refer you and your employer to a mediator. Second, if the EEOC is unable to reach a settlement both parties agree on, and the defendant is a private employer, the EEOC may file a lawsuit in federal court. Finally, the EEOC may also choose to simply dismiss the charge. When a charge is dismissed, or if the EEOC is unable to reach an agreement to settle the complaint, the EEOC will issue a notice to you advising you of your right to sue in court. This notice is called a “right-to-sue” letter. If you want to file a lawsuit before the EEOC completes its process, you may request a right-to-sue letter yourself.
It is extremely important to note here that some states have adopted stronger protections against sexual harassment, beyond the protection accorded under the legal ambit of Title VII. For more information, check out your state’s relevant laws or contact an employment lawyer in your state.
For Professional Advice on Sexual Harassment Law in Memphis – Contact Us

Click Here for more articles about Sexual Harassment in the Workplace.

Our experienced Sexual Harassment Attorneys offer a successful track record in cases involving:

Comments about Physical Appearance or Attributes
Inappropriate Jokes
Inappropriate Sexual Gestures
Pervasive Displays of Inappropriate Images
Sexual Innuendos and Comments
Spreading Rumors about a Person’s Sexuality
Talking About Sexual Activity
Threats or Bribes for Unwanted Sexual Activity
Unwanted Advances
Unwanted Touching

Memphis Hostile Work Environment Lawyer

In most situations, the sexual harassment attorneys at The Crone Law Firm work directly with clients to fight sexual harassment in the workplace. We investigate the situation and counsel clients on the proper steps involved in filing a sexual harassment complaint against an employer.