Sexual Harassment in the Workplace: A Legal Review of Recent Statutory, Administrative, and Case Law

This article examines the concept of sexual harassment and traces significant legal developments that have occurred. These issues are illustrated with reference to Supreme Court cases and cases in the Sixth Federal Circuit Court of Appeals. Recent tort issues that have been raised in sexual harassment cases in the Sixth Circuit are discussed. Sexual favoritism as a form of sexual harassment discrimination is discussed in relation to EEOC Guidelines and relevant case law. Finally, the issues of employer liability and defenses are covered. Sexual harassment is a serious workplace concern that can cost employers large sums o f money and severely damage employee morale. The law firm o f Baker & M c K e n z i e , for example, found this out on September 1, 1994, when a former secretary w h o had al leged she was sexually harassed by a partner was awarded $50,000 in compensatory damages and $7,125 million in punitive damages [ 1 ] . The fact that the organization where this occurred was a law firm points out that even firms that should be clearly aware o f the danger are not immune from sexual harassment problems. This article discusses the legal concept o f sexual harassment, the significant case law, and the employer ' s tort liability for sexual harassment with attention to developments in the Sixth Federal Appeals Circuit. The standing o f "sexual favorit ism" [2 ] as a form o f sexual harassment discrimination is also addressed. © 1998, Bay wood Publishing Co., Inc. 199 doi: 10.2190/EAY6-A7WP-GG80-HBHT http://baywood.com 200 / HESHIZER AND OWENDORFF Finally, employer defenses and the components o f a legally effect ive pol icy to deal with sexual harassment discrimination are covered. WHAT IS SEXUAL HARASSMENT? Sexual harassment is a form of sex discrimination that can be defined as a "type o f employment discrimination, [which] includes sexual advances, requests for sexual favors, and other verbal or physical conduct o f a sexual nature prohibited by Federal law . . . and commonly by state statutes" [ 3 ] . Under federal law, sexual harassment is prohibited by Ti t le V I I o f the Civ i l Rights A c t o f 1964 [ 4 ] , This act forbids an employer "to discriminate against any individual with respect to . . . employment, because o f such individual's . . . sex. . . . " [ 5 ] . Initially, federal courts narrowly interpreted Tit le V I I and held that no cause o f action existed under the act for sexual harassing conduct [ 6 ] . H o w e v e r , the scope o f Ti t le V I I broadened after the landmark case o f Williams v. Saxbe [ 7 ] , where a federal district court held for the first time that sexual harassment was dis­ criminatory treatment within the meaning o f Ti t le V I I . Even after Saxbe, federal courts still needed guidance on what type o f conduct or behavior constituted "sex" discrimination. In an attempt to clarify the issue, the E E O C published interim guidelines on sexual harassment on November 10, 1980, and final guidelines were published in 1988 [ 8 ] . The portion o f the Guidelines on Dis­ crimination Because o f Sex (§ 1604.11 Sexual Harassment) that deals with sexual harassment states in part: (a) Harassment on the basis of sex is a violation of §703 of Title VI I . Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is 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 is 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. (b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis. A n Ohio victim o f sexual harassment may also find relief under Ohio ' s Fair Employment Practices L a w [ 9 ] . This Ohio antidiscrimination law is interpreted in accordance with the standards applicable under Ti t le V I I [ 10 ] . Therefore, any SEXUAL HARASSMENT IN THE WORKPLACE / 201 conduct or behavior considered to violate federal law would be a violation o f Ohio law. In addition, the Ohio Supreme Court has recognized that sexual harass­ ment is a common law tort that may be actionable in state courts [ 11 ] . Although sexual harassment encompasses a broad range o f conduct, it usually falls into one o f two general categories: 1) quid pro quo harassment, and 2 ) hostile work environment harassment. Both types o f harassment violate Ti t le V I I , but each contains unique elements. Quid Pro Quo Sexual Harassment Quid pro quo ("something for something") harassment is the more conspicuous type o f harassment, which involves the exchange o f employment benefits by a supervisor for sexual favors from a subordinate employee . Quid pro quo harass­ ment typically involves a scenario where a supervisor demands sexual harass­ ment consideration in exchange for some type o f employment benefit [12] . The Sixth Federal Circuit Court o f Appeals in Kauffman v. Allied Signal, Inc. [13] held that in order to prevail under a quid pro quo theory o f sexual harassment, a plaintiff must establish: ( 1 ) that the employee was a member o f a protected class; ( 2 ) that the employee was subject to unwelcomed sexual harassment in the form o f sexual advances or requests for sexual favors; ( 3 ) that the harassment complained o f was based upon sex; ( 4 ) that the employee ' s submission to the unwelcomed advances was an express or implied condition for receiving j o b benefits or that the employee ' s refusal to submit to the supervisor's sexual demands resulted in a tangible j o b detriment; and ( 5 ) the existence o f respondeat superior liability [14] . Examples o f harassing conduct that are "based upon sex" may include the fo l lowing: 1) offensive or repeated unwelcomed sexual flirtation, advances, or propositions; 2 ) sexual innuendo or suggestive comments to or about someone; 3) graphic, verbal commentaries about a person's body; 4 ) degrading comments about an individual or his/her appearance; 5 ) display o f sexually suggestive objects or pictures; 6 ) sexual-oriented "kidding" or "teasing"; 7 ) foul or obscene language; and 8) staring, leering, or whistling [15] . A "tangible j o b detriment" may include termination [16 ] , transfer [17 ] , delay or denial o f j o b benefits [ 1 8 ] , or adverse performance appraisals. Hostile Work Environment Sexual Harassment The second category of sexual harassment is hostile work environment harass­ ment. Courts have had difficulty defining this type o f harassment because what is hostile or abusive to one employee may not be hostile or abusive to another. In Meritor Savings Bank v. Vinson, the United States Supreme Court recognized for 202 / HESHIZER AND OWENDORFF the first time that Ti t le V I I prohibits sexual harassment that takes the form o f a hostile work environment [19] . The Court stated that sexual harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions o f [the v ic t im's ] employment and create an abusive work environment" [19, at 67] . A n important question is what standard should be used to determine whether the work environment has become abusive or hostile. In Meritor, the Court said Ti t le V I I would not regard an isolated sexual j o k e as sexual harassment. Instead, the conduct must be sufficiently offensive that a "reasonable person" would consider the work environment hostile to the victim [ 1 9 ] . This issue was addressed by the Sixth Circuit Court o f Appeals in Rabidue v. Osceola Refrigerator Company [20] . The Appeals Court agreed with the district court judge w h o wrote in the trial court decision: . . . it cannot seriously be disputed that in some work environments humor and language are rough hewn and vulgar. Sexual jokes, sexual conversations and girlie magazines may abound. Title VI I was not meant to—or can—change this. . . . [While] Title VII is the . . . mainstay in the struggle for equal employment opportunity for . . . female workers . . . it is quite different to claim that Title VII was designed to bring about a magical transformation in the social mores of American workers [20, at 620-21 ] . In Rabidue, the Court stated that to establish a hostile work environment sexual harassment action a plaintiff must prove the same f ive elements that were iden­ tified in the Kauffman case [13, 14], which is discussed above [17] . The fourth element ( i .e . , the harassment interfered with the vict im's work performance and created a hostile work environment) was recently altered by the United States Supreme Court in the 1995 case Harris v. Forklift Systems, Incor­ porated [21] . The Supreme Court said that in order to prove that a work environ­ ment is sexually hostile or abusive, one has to examine all the circumstances involved including "the frequency o f 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. The effect on the employee ' s psychological well-being is . . . relevant to deter­ mining whether the [v ic t im] actually found the environment abusive" [21 , 114 S.Ct.,at 371] . The plaintiff in Harris worked as a rental manager from April 1985 until October 1987 for Forklift Systems, Incorporated. M s . Harris alleged that Forklift's president, Charles Hardy, treated her differently from the male managers in regard to