• Christine Webber

Xine W : Thank you, Eva. It's always a pleasure.

EvaS : Xine, what is sexual harassment? How is it defined legally?

Xine W : I'm sure you have all heard enough about sexual harassment to recognize it is a major problem. I want to start by giving a basic legal definition. Before I start, two caveats...first, to save typing time, I may refer to the victims of sexual harassment as "she," rather than he or she. But, although most victims of sexual harassment are women, men are also protected from sexual harassment, and are victims of SH as well. Also, I will be speaking primarily about sexual harassment (SH) in the workplace, although there are also problems with SH in schools and other settings. OK, SH is generally divided into two types: quid pro quo and hostile work environment. Quid pro quo means "this for that" and it occurs when a supervisor or someone with power over the terms or conditions of someone's employment (i.e. promotion, pay, having a job at all) requests sexual acts as a condition of getting the job/promotion/pay raise, etc. Quid pro quo harassment can occur with either an explicit demand (sleep with me or you're fired) OR implicitly -- when a boss makes sexual advances, they are rejected, and shortly after that some negative job action takes place. The second kind of sexual harassment is hostile environment harassment. This occurs when sexual advances, comments, or other conduct of a sexual nature is UNWELCOME AND the conduct has the purpose _or_ effect of creating an intimidating, hostile, or offensive work environment. Essentially, the conduct is sufficiently severe or pervasive that a court finds that it alters the "terms and conditions" of the plaintiffs' employment. Phew! One more comment, and then I'll take questions on the definitional stuff. After conduct is established to be sexual harassment, a plaintiff still has to prove that the employer is LIABLE for the harassment -- which usually means showing that a manager or high level official knew or should have known about the harassment. Although, if it is a high level official who engaged in the harassment, that alone can lead to liability.

LDRWM : I am a federal employee who filed an EEO complaint. Why can't I sue for punitive damages? I was told that government is exempt from punitive damages.

Xine W : Sexual harassment is prohibited by Title VII which prohibits discrimination in employment. Prior to 1991, the only remedy provided for was lost wages. In 1991, the law was amended to allow for compensatory damages (pain and suffering) and punitive damages. However, Congress exempted federal, state and local governments from the provisions for punitive damages. The rationale was that punitive damages were designed to punish the employer, but when the government was the defendant, the "innocent taxpayer" got stuck paying punitives so, they exempted governments. That is the case in most areas of law, not just SH.

GGTX : Xine W, How far is too far? Flirtation, eye contact, etc.

Xine W : Courts look at the totality of the circumstances. Factors include: severity -- where physical contact is considered worse than crude comments, which are considered worse than subtle sexual advances (i.e. invitation to dinner), or eye contact. I have been reading a lot of summary judgment cases lately, and I have never seen a case make it past that stage based on eye contact alone. But then, I have never seen a suit filed over eye contact. As far as flirtation goes -- that covers a huge range of conduct. In one case I was involved in, a man exposed himself to a woman -- having told another man a few minutes earlier that he thought if she saw his penis, she would want to go out with him. That was "flirtation" to him, but it is harassment to me. Also, an employer can hold their employees to a higher standard than the law would impose, so that they can tell you to stop it after an employee has made clear that comments are unwelcome -- even if 1-2 comments would not be enough for liability.

Yjudie : SH claims have increased over the past few years. Aren't people getting the message?

Xine W : I would like to think employers have gotten the message, but the cases I have seen show they have not -- or else they have not translated that message to their other employees, and developed an effective response to incidents of harassment.

LisaSmall : Xine, I wanted to comment on the denial of punitive damages against governments. In some cases, such as civil rights violations under Section 1983, the courts have permitted punitive damages against government units, haven't they? The policy basis being that if taxpayers are forced to pay for misconduct of public officials, they'll soon get themselves a new group of officials?

Xine W : Sorry, Lisa, they have not. I was recently involved in a Sec. 1983 case -- no dice.

LisaSmall : Darn.

LDRWM : I have photos of a mannequin with penis at an office party but, Feds are interested redtape, not tax dollars. How can I get relief, or action rather than more redtape?

Xine W : LDR, are you a federal employee?

LDRWM : Yes.

Xine W : Unfortunately, that system does have the most redtape. You have to file a complaint within your agency, and only after they have had the chance to deal with it, can it move to the EEOC and finally the Courts. An attorney may be able to help you expedite this process, but there isn't always a quick solution.

DXSMac : A male friend brought up an interesting comment to me. He said that his male coworkers could not bring Hustler, Playboy, etc. to work because the females were offended. Then, one of his female coworkers brought COSMO to work and he complained that HE was offended. Have any males complained about offensive magazines being brought to work like that? I thought it was an interesting comparison.

Xine W : Pictures that are posted or otherwise visible to others can create a hostile work environment. Generally, when complaints have been brought, pictures have been a part, but not all of the conduct. In order to be considered part of a hostile environment, the pictures would have to be sexual, and contribute to an atmosphere that discriminates against one gender. Playboy, Hustler, etc. do contain pictures that are sexual. I don't know that Cosmo does. All I have seen are the covers with women who are supposed to be "sexy," but are not naked like in the magazines you mentioned. I don't know of any case of a man complaining about pictures posted by women.

MARC1913 : The military will never get rid of sexual harassment.

LynnCSE : The army acts like this is the first case of sexual harassment. What about the soldiers who raped the little Asian girl? Or does that not count because it was in an occupied country? In 194l, women Marines were called BAM in print meant big assed marines. I think they are worse in service than as civilians.

READ MORE ABOUT IT: Sexual Harassment (rev. 11/18/96 - jlc)

[NOTE: These brief bibliographies are not intended to be an exhaustive treatment of a topic .... instead they are intended to provide a starting place for reading on the topic.]

African American Women Speak Out on Anita Hill-Clarence Thomas. Detroit, Wayne State University Press, 1995.

Brandenburg, Judith B. Confronting Sexual Harassment : What Schools and Colleges Do. New York, Teachers College Press, 1997.

Danforth, John C. Resurrection : the Confirmation of Clarence Thomas. New York, Viking, 1994.

Dusky, Lorraine. Still Unequal : the Shameful Truth About Women and Justice in America. New York, Crown Publishers, 1996.

From Data to Public Policy : Affirmative Action, Sexual Harassment, Domestic Violence and Social Welfare. Lanham, MD, Women's Freedom Network & University Press of America, 1996.

Hauter, Janet. The Smart Woman's Guide to Career Success. Philadelphia, PA, Chelsea House Publishers, 1996, c1993.

LeMoncheck, Linda. Sexual Harassment : a Debate. Lanham, MD, Rowman & Littlefield Publishers, 1997.

Race, Gender, and Power in America : The Legacy of the Hill-Thomas Hearing. New York, Oxford University Press, 1995.

Reischl, Dennis K. The Federal Manager's Guide to Preventing Sexual Harassment. 2nd ed. Huntsville, AL, FPMI Communications, 1995.

Robichaud, Bonnie. A Guide to Fighting Workplace Sexual Harassment / Assault. 2nd ed. Orleans, Ont., B. Robichaud, 1994.

Ronai, Carol R. Everyday Sexism : Gendered Oppression in the Late 20th Century. New York, Routledge, 1997.

Rutter, Peter. Understanding and Preventing Sexual Harassment : the Complete

Guide. New York, Bantam Books, 1997, c1996. Sex, Power, Conflict : Evolutionary and Feminist Perspectives. New York, Oxford University Press, 1996.

Speech & Equality : Do We Really Have to Choose? New York, New York University Press, 1996.

Subtle Sexism : Current Practices and Prospects for Change. Thousand Oaks, CA, Sage, 1997.

Supervisor's Easy Guide to Sexual Harassment Law. Walnut Creek, CA, Council on Education in Management, 1995.

Wolfson, Nicholas. Hate Speech, Sex Speech, Free Speech. Westport, CT, Praeger, 1997.



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