When is it really sexual harassment?

Sexual harassment can be termed as any type of sex discrimination that contravenes title VII of the Civil Rights Act of 1964. It includes demands for sexual favors, physical or verbal demeanor with a sexual undertone and any unwarranted sexual advances.
Sexual harassment also includes instances when a person submits or rejects this demeanor implicitly or explicitly resulting in the development of offensive or hostile work environment and interfering with a person’s performance at work. There are several scenarios in which sexual harassment may come into play for example, the harasser and the victim may be of either or the same genders. The harasser may be a supervisor, an employer, a co worker or even a non-employee while the victim may be any person not necessarily harassed but affected by the misdemeanor. Sexual harassment may occur without discharge or economic injury on the part of the victim. The harassed individual should use any complaints channel available and should inform the harasser of their unwelcome conduct which must stop.

During investigations the relevant authorities such as EEOC reviews the entire records. They do this so as to get a clear picture of the context, the type of sexual harassment and the circumstances that surrounded the alleged events. After careful analysis of the given information, the allegations are then determined.

Employers are always informed on the importance of sensitizing their employees on sexual harassment matters and the need to become intolerable of such misconduct within organizations. The respective employers can do this by establishing a grievance office in their organizations through which complains on such misdemeanor will be launched so as to that the appropriate actions may be taken in accordance with the stipulated regulations.  This strategy is one of the preventive measures put in place by organizations to improve communication and deter individuals with sexual harassment tendencies or behaviors. 

Sexual harassment is normally categorized into two major types; Hostile environment and Quid Pro Quo. The more open type of sexual harassment or Quid Pro Quo entails a person in power demanding for sexual favors in exchange of inaction or action from their subordinate. For instance, the authority may promise the subordinate of a plum position in the work place or threaten them with contract cancellation or employment termination.

The hostile environment type of sexual harassment is more concealed and difficult to unravel or provide evidence on in the event that it occurs. This form of sexual harassment is more common in the work environments and happens when an employee is taken through emotional or mental stress. The stress may be built upon heavy exposure to annoying or offensive talk marred by sexual overtones, pornographic pictures, sexual intended jokes and unwarranted sexual advances. However, this form of sexual harassment poses no threats to the victim’s job or economic status. Legislative action and case law are continually interpreting and re-interpreting this form of harassment to develop more clear boundaries to guide administration of the law. The U.S. Supreme Court, in Meritor Savings Bank v. Vinson, in 1986, approved the concept of a hostile job setting to be "such conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment".

In the United States a number of states have endorsed the Fair Employment Practice (FEP) Laws which are geared towards addressing issues of sexual harassment on the state level. Although these statutes do not cover damages due to personal injury in a claim. The EEOC and the FEP offer the Alternate dispute resolution service (ADR) in order to resolve sexual harassment issues at low costs and without involving the formal court system. This provides more channels for employees who have been sexually harassed and have exhausted the in-house policy of their work place regarding sexual harassment to air out their grievances and seeks justice.

Quid Pro Quo

When harassment under this form occurs, the assistant has the right as stipulated by law to take the employer to court. The organization is held responsible if it had knowledge of the misdemeanor by the court since they follow the principle of respondeat superior.  In 1982, the U.S. Court of Appeals for the Eleventh Circuit initiated the reason to hold an organization liable in the Henson versus City of Dundee. The court responded that the supervisor used authority delegated to them by the employer to achieve the prohibited intention. In this case the employer who gave the supervisor the authority together with the supervisor who used the authority for ill motives are both at fault and will be charged accordingly.

The principle of respondent superior states that an organization will be held responsible for actions of their supervisors or an agent not necessarily employed by the organization but who wields authority as entrusted by the employing company. This is because the organization should have full control of all its employees to be able to protect them from harm.

Hostile Environment

In the case of, Bundy versus Jackson, the District of Columbia Circuit Court of Appeals stated that hostile environment cases are cases which cause a "cruel trilemma" to the victim. In the case of Bundy the victim had three alternatives: The first was to tolerate the aggravation, second was to attempt to resist it and make the situation worse, or thirdly to terminate their job. Placing a person under this trilemma gave the victim reason to take the harasser to court.

In the case of Harris versus Forklift Systems, Inc. of 1993 the U.S. Supreme Court broadened its decision in Meritor to comprise of demeanor that does not actually cause psychological injury. The Court held that the Civil Rights Act works when an individual is exposed to demeanor that will negatively affect their psychological well being. However, it is also breached even before the person’s psychological state is affected by the misdemeanor.

This part of the decision uses the reasonable person standard that the law will not wait until the person succumbs to psychological trouble before it comes to effect. It works to protect and save the individual from continued or prolonged harassment. The court will seek to deliver this by studying the circumstances that revolve around the sexual harassment events. These include; the incidences of the sexual misconduct, whether the actions are humiliating or physically threatening, the severity of the demeanor and whether or not it interferes with the victim’s performance at the work place.

In the Quid Pro Quo, the U.S Supreme court rules that the employer or employing company is responsible in case evidence of the sexual harassment is provided. In this case the employer does not need to know or the company expected to have knowledge of the said events because it is the employer’s responsibility to institute policies that protect their employees. On the other hand the Supreme Court handles the Hostile Environment form of sexual harassment differently by ruling that the case is only viable if the employer or employing company has knowledge of the events surrounding the sexual harassment case or has knowledge but fails to take the appropriate action to correct the situation. This is because this form is more concealed and weighs heavily on an individual’s conduct but the company is required to apply the law or its policies if it has knowledge of any such incidents.

In other cases the Supreme Court rulings asserts that if action taken by the victim of sexual harassment is enough to get their employment terminated then this qualifies as “opposing” unlawful discrimination which falls under “opposition” protection of the Civil Rights Act. Such was the case as the ruling made by Justice Alito in the Crawford v. Metropolitan Government. The Supreme Court showed favor for those who gave evidence or opposed sexual harassment because they intend to provide avenues to address these grievances.

Sexual harassment exposes organizations to risks and therefore organizations should develop better mechanisms to manage these issues. This is because in situations where a case is presented in court, the company may suffer through legal suits and tarnished reputations. In light of these, it is imperative that for organizations develop strict policies with regards to sexual harassment.