Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, as amended. It is defined by the Equal Employment Opportunity Commission as unwel-come sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct (1) explicitly or implicitly affects an individual's employment, (2) unreasonably interferes with an individual's work performance, or(3) creates an intimidating, hostile, or offensive work environment. U.S. law recognizes two types of sexual harassment. The first is termed quid pro quo, Latin for "this for that," implying a trade involving sex (e.g., a supervisor offering a subordinate a promotion in exchange for sexual favors or denying a job benefit because of refusal of the supervisor's advances). The second type is "hostile environment" harassment, which is less blatant and harder to define. This occurs when an employee is placed in an uncomfortable or threatening environment due to unwelcome sexual behavior in the workplace. Examples of hostile environment situations include telling jokes or stories of a sexual nature; unwelcome touching, such as patting or hugging; displaying suggestive or sexually explicit photographs, posters, or calendars; or making suggestive facial expressions or gestures.

HISTORY

As a practice, sexual harassment is certainly not new; accounts of women and men placing their

livelihoods at risk if they did not submit to some sort of sexual activity—from the playful to the criminal—can be found throughout history. However, the term itself is relatively new in American culture, entering the language as recently as 1975. The legal foundation for objecting to sexual harassment was laid in 1964 in Title VII of the Civil Rights Act, which prohibited employment discrimination because of an individual's sex as well as race, color, religion, or national origin. Still, although sex discrimination was illegal, there was no real guidance in existence with regard to sexual harassment. It was not mentioned specifically anywhere in the Civil Rights Act, nor was it found in the fair employment practices statutes enacted in most of the states. When the courts ruled on the issue, they typically saw it as a sort of personal dispute between employee and harasser not covered by law. Largely as a result of the issue's being raised and publicized by women's groups during the early 1970s, the Office of Personnel Management issued guidance in 1980 defining sexual harassment and warning that such conduct was unacceptable in the federal workplace. Still, the new guidelines had no legal enforcement avenues available. Action by the Equal Employment Opportunity Commission in 1980 attempted to remedy this by declaring that it was illegal to sexually harass someone on the job. By this time, sexual harassment had been the subject of several court cases but had not drawn national attention.

KEY EVENTS

The Supreme Court decided its first sexual harassment case in 1986 in Meritor Savings Bank v. Vinson with a unanimous landmark ruling that did three important things: confirmed that Title VII outlawed sexual harassment; defined quid pro quo harassment; and, finally, added the concept of hostile environmental abuse. The ruling also cautioned that employers have a responsibility for guarding against harassment. Vinson was significant in that this was the first time the Court recognized a cause of action for sexual harassment based on creation of the "hostile work environment," in contrast to earlier quid pro quo cases in which the demand for sexual favors was at issue. Vinson caused employers nationwide to relook at personnel policies and practices with regard to sexual harassment as newly defined.

Many felt that Vinson did not go far enough with regard to employer liability, while others felt it criminalized what they saw as harmless humor and friendly flirtation. As this debate continued, largely in the workplaces and courtrooms of the nation, two events occurred: one involving theU.S. military and the other the confirmation of a Supreme Court justice. These events brought the topic of sexual harassment into the national spotlight. In 1991, the Navy's Tailhook scandal captured the nation's attention with reports that female naval officers had been assaulted in a hallway "gauntlet" by their fellow officers during the annual convention of naval aviators held in Las Vegas. Lieutenant Paula Coughlin complained officially to her superiors of her fellow officers' behavior, only to see her complaints initially ignored. She then went public with her story, prompting other female naval officers to do the same. The Tailhook scandal resulted in a number of administrative actions against naval officers, early retirements of some of the Navy's highest officials, and the forced resignation of the Secretary of Navy.

Perhaps the most significant event to make sexual harassment the topic of national debate was the revelation in 1992 that Supreme Court nominee Clarence Thomas had, a decade earlier, allegedly sexually harassed a former employee of his at the Equal Employment Opportunity Commission (EEOC). Anita Hill, a professor at the University of Oklahoma's Law School at the time of Thomas's nomination, had been contacted by Senate staffers regarding a rumor regarding such allegations. Hill indicated that Thomas had repeatedly discussed sexual matters with her in a suggestive and humiliating manner while he was her superior at the EEOC. When the majority of the U.S. Senate appeared ready to confirm Thomas without an airing of the charges, American women protested and effectively stopped the proceedings until the accusations could be examined. The ensuing testimony in Senate hearings by both Hill and Thomas started a firestorm of controversy throughout the nation. Many working women began to speak out of their own experiences and, within days of the hearings, the number of sexual harassment complaints filed with government agencies quadrupled. Ultimately, Thomas was confirmed for the Supreme Court; however, the controversy had the lasting effect of bringing the issue of sexual harassment out of the dark into the light of legal and political debate.

AMENDMENTS TO THE LAW AND COURT DECISIONS

The Civil Rights Act of 1991 expanded the rights of the complainant, allowing individuals who file actions under the law to collect up to $300,000 in compensatory and punitive damages. Also, in the years following the passing of this law, many states tightened sexual harassment laws and added measures to protect victims from reprisal.

In recent years, Supreme Court decisions on sexual harassment have focused more and more on the application of common sense to the particular situation (i.e., looking at the situation as a "reasonable" person would). In 1993, in its decision in Harris v. Forklift Systems, Inc., the Court established the standard and perspective for evaluating whether or not a particular conduct is unlawful harassment. The Court ruled unanimously that while psychological harm may be taken in account in evaluating whether sexual harassment occurred, it is not a requirement in a claim. Conversely, the decision also held that the mere utterance of an offensive statement would not normally constitute a violation of the law.

The following Supreme Court decisions, all issued in 1998, are considered among the most significant in defining sexual harassment law: First, in Burlington Industries, Inc. v. Ellerth, the complainant showed that although she was subjected to offensive, vulgar behavior, she had not suffered in any manner relating to her employment situation. In fact, she had been promoted at the company prior to her resignation. The Court ruled that harassment is defined by the behavior of the harasser, not by what subsequently happens to a worker. Another key portion of this decision and that of another case, Faragher v. Boca Raton, addressed employer liability with regard to hostile environment harassment and the employee's responsibility to report the offense to someone with decision-making authority. Faragher involved a female lifeguard who had claimed she had endured repeated sexual harassment from her male supervisors yet had not formally complained due to her fear of retaliation. During the course of the litigation, it was shown that although Faragher's employer, the city of Boca Raton, Florida, had a sexual harassment policy, it was unknown to both the complainant and her supervisors. The Court indicated that an employer could defend itself successfully if it could prove that it had a known, effective policy against harassment and that the employee had failed to take advantage of it.

In another ruling, Oncale v. Sundowner Offshore Services, Inc., employer liability for sexual harassment between members of the same sex was clearly defined. The case arose out of a suit filed by an oil platform worker who had been subjected to humiliating, sex-related acts by two supervisors and a fellow crew member. The Court unanimously declared that sexual harassment is actionable (i.e., liability can be found) even when the people involved are of the same sex. A key point articulated in the decision was that what mattered was the conduct at issue rather than the sex of the individuals involved or the presence or absence of sexual desire.

POSSIBLE SOLUTIONS

Prior to the Farragher and Ellerth decisions, the courts decided liability of employers by focusing their attention chiefly on actions taken after an employee complained of harassment. In more recent decisions, the courts are also taking into consideration the steps that employers have taken before claims are filed, including whether or not they have a good sexual harassment policy in place. Such actions by the courts clearly show that prevention remains the best remedy for sexual harassment. The following strategies are recommended by various legal and human resources experts for employers who wish to make their workplaces sexual harassment-free: (1) Have a written state-of-the-art policy on sexual harassment that explains, in easy-to-understand terms, the types of prohibited behavior. Prior to issuance, get a legal review of the policy. Assure that the policy is posted as well as disseminated to all supervisors and employees, preferably at least on an annual basis. (2) Commit to the policy at the highest levels. Assure that employees see this issue as a matter of importance to the company's top managers and all levels of supervision. (3) Develop an internal complaint process that assures confidentiality and has multiple points of access, not just the employee's supervisor. Assure that there are management-level personnel of both sexes available to those who wish to complain. While the Supreme Court did not mandate that employers provide complaint procedures, it did hold that employers may escape liability if they have a complaint process in place and employees fail to use it. (4) Investigate complaints promptly and thoroughly, maintaining confidentiality as much as possible. Assure swift action to investigate; courts have found companies liable for sexual harassment in part because they took too long to conduct the investigation. Assure that employees complaining or providing information in an investigation are not retaliated against.(5) Conduct high-quality training, including refresher training, for employees, managers, and supervisors on anti-discrimination and anti-sexual harassment policies and practices. Assure that the training covers responsibilities of members of each of these groups regarding the company's sexual harassment policy and complaint procedures. Keep records of such training as tangible evidence of the company's good faith efforts to eliminate sexual harassment. (6) Conduct physical assessments of work areas such as factory floors, warehouses, and remote offices. Often potential problems such as inappropriate posters or cartoon clippings can be identified. (7) Take deliberate, decisive action when the sexual harassment policy is violated. Assure that there is a solid legal basis for the actions proposed. The unjustly accused harasser, as well as the accuser, is a potential plaintiff.