Sexual Harassment | Introduction
Although the public has recognized sexual harassment as a serious issue, there is still no widely agreed upon definition of the concept. Anne Fischer, who answers reader questions about conduct in the workplace in her “Ask Annie” column in Fortune magazine, revealed that after publishing one letter from a reader who was confused about sexual harassment, she received “a torrent of e-mails pretty clearly demonstrating that on this subject, lots of folks are utterly clueless.”
Initially, the courts only recognized sexual harassment cases in which women were compelled to trade sexual favors for professional survival. This is known as quid pro quo or “this for that” sexual harassment, and it occurs when employment decisions on hiring, promotion, transfer, discipline, or termination are made on the basis of submission to or rejection of unwelcome sexual conduct. For example, in July of 1994, the Pittsburgh branch of the Federal Reserve Bank paid more than $200,000 to Arlene Spirko, who was demoted and then fired by her supervisor after she rejected his unwanted advances.
In 1986, in Meritor Savings Bank v. Vinson, the Supreme Court upheld the Equal Employment Opportunity Commission (EEOC) definition of sexual harassment, which treats such conduct as sex-based discrimination in violation of Title VII of the 1964 Civil Rights Act. The Court ruled that employees have the right to work in environments free from discriminatory intimidation, ridicule, and insult. With this ruling, the Court recognized what has become known as “hostile environment” sexual harassment.
However, interpretation of the “hostile environment” clause of the EEOC guidelines has been the source of much of the debate over sexual harassment. According to the guidelines, “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when . . . 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.” Because this broad definition can be interpreted in a variety of ways, it has created ambiguity both in and out of the courts. Some authorities argue that the definition of hostile-environment sexual harassment is too vague, while others argue that a broad definition is necessary to protect victims of sexual harassment.
Some of those who think the definition is vague argue that because organizations do not know how to interpret the guidelines, they often respond with strict policies that can have absurd and costly outcomes. These authorities point to cases in which people who have been punished by overly strict policies have filed successful reverse-harassment lawsuits. For example, Jerold Mackenzie was fired by the Miller Brewing Company after recounting a scene from the situation comedy Seinfeld. In the episode, Jerry Seinfeld knew only that his date’s name rhymed with a female body part; he remembers her name in the final scene, yelling “Dolores!” To explain the punch line, Mackenzie showed coworker Patricia Best a dictionary definition of the word clitoris. Best was offended and reported Mackenzie’s conduct, and the company concluded that his behavior violated its sexual harassment policy. However, a jury of ten women and two men in Milwaukee, Wisconsin, did not believe Mackenzie’s behavior violated the legal standard for hostile-environment sexual harassment and ordered the Miller Brewing Company, as well as the woman who filed the sexual harassment claim against Mackenzie, to pay him a total of $26 million.
Other authorities note that many colleges and universities have also been accused of overreacting to the EEOC guidelines and restricting any conduct that might create a hostile or offensive learning environment. Some legal scholars are concerned that these rigid policies inhibit free speech. “If you have actual sexual extortion going on, then something should be done,” argues Eugene Volokh, who teaches at the UCLA School of Law. “What’s really problematic is when you’re talking about imposing liability for speech.” An example in which a professor’s speech was interpreted as harassment occurred in 1992 at San Bernardino Valley College, in professor Dean Cohen’s remedial English class. Anita Murillo, a student in the class, was offended by Cohen’s focus on topics of a sexual nature, his use of profanity, and comments she believed were directed at her and other female students. When Cohen asked the students to write essays defining pornography, Murillo asked Cohen to provide her with an alternative assignment. Cohen refused, and Murillo stopped attending the class, ultimately failing the course. The college found Cohen guilty of violating its sexual harassment policy, but the California Court of Appeals held that the college’s policy was unconstitutionally vague.
Defenders of the EEOC definition maintain that it is not vague, arguing instead that its broad scope is necessary to protect victims from this type of sexual harassment. These experts claim that definitions which require judges and juries to make subjective judgments on the social and psychological context of behavior are not uncommon in the law. According to sexual harassment training specialist Barry Spodak, “Charges of murder, assault, rape and obstruction of justice are just a few of the criminal areas where context plays a crucial role in determining guilt. Yet nobody says that these crimes are undefined.” Although these authorities admit that the definition has resulted in a few ludicrous lawsuits and verdicts, they believe most judges and juries have reacted reasonably to complaints.
Some proponents of a broad definition of sexual harassment argue that media focus on the rare, absurd cases gives support to those who oppose any advances for women. According to Judith Vladeck, a prominent sexual harassment plaintiff’s attorney, “A lot of the confusion is deliberate. People who are against any kind of feminist advance in the workplace spread these absurd rumors, like, ‘Oh, if you even tell someone you like the blouse they’re wearing, they can sue you.’ It’s arrant nonsense, yet people believe it.” She claims that determining what is and is not sexual harassment is easy. “Even the most thickheaded people will suddenly ‘get it’ if you ask them, Would you like someone to treat your daughter this way?”
Although many agree with Vladeck’s belief that identifying hostileenvironment sexual harassment ought to be easy, others remain convinced that reverse-harassment suits are a sign that the definition is too vague. The issue remains a subject of debate, one of the many difficult questions that surround the problem of sexual harassment. The authors of the viewpoints in Sexual Harassment: Current Controversies examine this and other social, legal, educational, and ethical issues raised by the sexual harassment debate.
