Sexual Discrimination And Sexual Harassment In The Workplace

A LEGAL OVERVIEW

I. Federal Statutory Proscription

      Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."  42 U.S.C. 2000e-2(a)(1).

      NOTE:  Many states have similar prohibitions on discrimination, and plaintiffs frequently bring actions based on state civil rights statutes or state tort theories as well as under the federal statute.

II. Types of Discrimination

      A. General Sexual Discrimination

Disparate treatment - Title VII prohibits employment practices that, without appropriate justification, treat persons differently based on their sex.

Disparate impact - Title VII prohibits facially neutral employment practices that, without appropriate justification, adversely affect women or men.

      B. Sexual Harassment

Quid pro quo (tangible job action) sexual harassment - This type of harassment occurs when submission to, or rejection of, unwelcome sexual conduct is used as the basis for employment decisions affecting the individual or when some term of employment is either expressly or implicitly conditioned on participation in unwelcome sexual conduct.

Hostile work environment sexual harassment - This type of harassment contains each of the following elements:

1. the conduct is unwelcome;

2. the conduct is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment;

3. the conduct is perceived by the victim as hostile or abusive; and

4. the conduct creates an environment that a reasonable person would find hostile or abusive.

            Definitions

In determining whether conduct is "unwelcome", courts will consider whether the victim, by his or her conduct, has indicated that the alleged actions were unwelcome.  Factors that will be considered include:

1. Whether a complaint was promptly made;

2. Whether the complained of activity was invited by the complaining party's sexually oriented language or behavior; and

3. Whether testimony of other employees corroborates the complaining party's account.

The courts will also look at a totality of circumstances in determining whether a work environment is in fact "hostile" or "abusive."  These factors may include:

1. Frequency of the discriminatory conduct;

2. Severity of the conduct;

3. Whether the conduct is physically threatening or humiliating, as opposed to a mere offensive utterance; and

4. Whether the conduct unreasonably interferes with the

employee's work performance.
 
 

III. Employer liability

A.  Quid pro quo/Tangible job action harassment

      Since quid pro quo sexual harassment by definition involves someone with the ability to affect the victim's terms and conditions of employment, an employer will be held strictly liable for quid pro quo sexual harassment by its supervisory employees.

      B.  Hostile environment harassment

            Normal agency theories will apply in determining employer liability. 

            Co-worker harassment-

The critical factor in determining liability include whether the employer has actual or constructive knowledge of the hostile environment, whether the employer permitted the environment by failure to take appropriate preventative steps, whether complaints of sexual harassment were promptly investigated and whether the employer had an effective policy against sexual harassment.  

            Supervisory harassment-

The employer may raise an ?affirmative defense? to liability if it can show:

a) The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

b) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

IV. Supervisory Responsibilities

      Allegations of misconduct should result in prompt investigation, and sustained allegations should result in appropriate disciplinary action. 

1. Both parties and any potential witnesses should be interviewed.

2. If the allegations cannot be proven or disproven, counseling with both employees and some form of training should be implemented and documented.  If appropriate, the complaining party may be offered a transfer.  In any event, the complaining party should be assured the sexual discrimination and harassment will not be tolerated and any future incidents should be promptly reported.

3. Appropriate disciplinary actions should be taken if misconduct is proven.

4. The supervisor should follow up after an appropriate period of time has passed to ensure that problems have not recurred.

5. Retraining of all employees should be considered in appropriate circumstances. 

V. Policy Considerations

1. Written policy is essential

2. Establish zero tolerance

3. Include reporting alternatives

4. Require some action in all instances

5. Consider requiring ?professional treatment? of all co-workers and some type of anti-fraternization policy

6. Keep good records of policy distribution

U.S. Supreme Court Cases

- Burlington Industries v. Ellerth, 524 U.S. 742 (1998)

- Faragher v. City of Boca Raton, 524 U.S. 775 (1998)

Threats Not Carried Out

Ellerth presented the issue of employer liability in the situation where a supervisor has tied employee benefits or detriment to sexual favors, but the employee has suffered no adverse job impact after rejecting the sexual advances.

Remote Location

Faragher addressed the appropriate standard for imposing employer liability for offensive and harassing behavior carried out by supervisors in a remote location.

      C.  The Supreme Court Decisions

            The Supreme Court ruled similarly in both cases, holding:

1.  The employer is liable for supervisory conduct when the supervisor demands and receives sexual favors in return for a job benefit.

2.  The employer is liable for supervisory conduct when the employee refuses to engage in sexual conduct or when a hostile environment is created and a ?tangible employment action? results. 

- ?Tangible employment action? means some significant change in the employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities or significant change in benefits.   Generally, a ?tangible employment action? results in direct economic harm.

3.  The employer is liable for supervisory conduct which constitutes sexual harassment but does not result in a ?tangible employment action,? but is entitled to raise an affirmative defense by proving:

a)  The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

b)  The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

Two footnotes:  Simply having a sexual harassment policy is not enough to meet the burden under (a).  Unreasonable failure of employee to use a complaint procedure satisfies (b).

Recent Federal Court Decisions

Hilt-Dyson v. City of Chicago, 282 F.3d 456 (7th Cir.), cert. den., 537 U.S.820 (2002) ? Male lieutenant?s touching of female officer?s back and shoulder on two occasions and a negative evaluation of her uniform during a routine uniform inspection did not constitute either sexual harassment nor adverse employment action.  Taken separately or together, incidents were not severe or pervasive.

Longstreet v. Illinois Department of Corrections, 276 F.3d 379 (7th Cir. 2002) ? Plaintiff sought damages from her employer based on two acts of crude behavior by co-workers, at least one of whom had been previously disciplined for harassment.  The Court found that simply the failure of previous discipline to deter future acts is not a basis for liability.  Moreover, the Court held that negative performance evaluations and being required to substantiate her illness-related absences did not constitute adverse employment action.

Durkin v. City of Chicago, 199 F.Supp.2d 836 (N.D.Ill. 2002), aff?d, 341 F.3d 606 (7th Cir. 2003) ? Despite egregious conduct toward female trainee, her failure to utilize the City?s complaint procedure doomed her claim against her former employer.

Griffin v. City of Opa-Locka, 261 F. 3d 1295 (11th Cir. 2001), cert. den., 535 U.S. 1033 (2002)   - City?s tolerance of gross sexual harassment, its failure to take remedial action despite actual and constructive knowledge of the problem and lack of any sexual harassment policy or complaint procedure constitute ?policy or custom? of ignoring or tolerating sexual harassment sufficient to subject it to liability under s. 1983 (upholding $500,000 award).

Walton v. Johnson & Johnson Services, Inc., 203 F.Supp.2d 1312 (M.D. Fla. April 5, 2002) - Existence of sexual harassment policy defining and prohibiting harassment, including identification of alternatives to reporting misconduct that involves supervisors, along with evidence that an annual letter regarding sexual harassment in the workplace, sent to all employees, sufficient to establish ?Ellerth/Faragher? defense, relieving employer of liability.

Samedi v. Miami-Dade County, 206 F.Supp.2d 1213 (S.D. Fla. March 14, 2002) - County, which provides sexual harassment training to supervisors, posts its policy with complaint procedure on a public bulleting board and has a separate department to receive and investigate complaints established ?Ellerth/Faragher? defense (notwithstanding Plaintiff?s allegations that she had never seen policy and that English was not her primary language and the policy was not posted in foreign languages).

Escalante v. IBP Inc., 199 F.Supp.2d 1093 (D. Kan. 2002) - Employer failed to establish ?Ellerth/Faragher? defense where policy provided only one person to report discrimination claims to, that person was located in another state, was only accessible by telephone number (and the policy did not state the hours or days of availability) and the policy did not address any mechanism for supervisors to report complaints by employees.

Spina v. Forest Preserve District of Cook County, 207 F.Supp.2d 764 (N.D.Ill. 2002) ? Plaintiff, a police officer for the Forest Preserve District, was assigned as the first female in a particular area.  She alleged that she was subject to numerous acts of harassment.  The court found that the defendants failed to have in place procedures for preventing and addressing sexual harassment and failed to take appropriate measures to remedy the harassment once it was brought to its attention and directed a verdict in Plaintiff?s favor (upheld on appeal with a remittitur of the $3 million jury verdict to $300,000).

Johnson v. Rice, 237 F.Supp.2d 1330 (M.D. Fla.  2002) ? Court granted summary judgment to Sheriff in sexual harassment case, finding first that the jokes forming the basis of the complaint did not create an abusive working environment and secondly that the Sheriff had in place a comprehensive ant-harassment program constituting a defense under Faragher.

Rogers v. Chicago, 320 F.3d 748 (7th Cir. 2003) ? Female police officer failed to show her work environment was objectively offensive, the court held, stating that occasional vulgar banter, tinged with sexual innuendo, of course or boorish workers not sufficiently egregious to  actionable.

Mercer v. City of Cedar Rapids, 308 F.3d 840 (2002) ? Court upheld termination of female probationary police officer for engaging in an adulterous relationship with a permanent police captain, who was not terminated.