The Two Types of Workplace Sexual Harassment

Understanding Sexual Harassment in the Workplace

Sexual harassment is defined as the intimidation, bullying or coercion that occurs within a sexual manner. Sexual harassment is also viewed as the unwelcome or inappropriate sexual behavior or the promise of reward or punishment for sexual favors (Paludi and Barickman, 1991). In the United States sexual harassment is illegal and subjects organizations to litigation when violated. Sexual harassment is considered a form of gender discrimination and is a serious violation of civil rights. Specifically, sexual harassment violates Title VII of the Civil Rights Act of 1964.

In accordance with the US Supreme Court, there are two forms of sexual harassment that are defined as Quid Pro Quo and Hostile Environment. Quid Pro Quo is Latin for ‘this for that.’ This form of sexual harassment takes place when a person of authority uses their position to coerce sexual favors from subordinates. In this situation, the subordinate will feel forced to submit to the sexual demands of the person in authority or face negative consequences. For example, if an employer threatens to fire an individual for not submitting to sexual demands. The demands can also include the withholding of positive outcomes such as a raise or promotion.

The second form of sexual harassment is Hostile Environment. This form of sexual harassment is often ambiguous and difficult to prove. In this form of sexual harassment, a person is made to feel uncomfortable because a person in the workplace is making sexual gestures, sending images, or making inappropriate conversation. These advances negatively impact the individual’s job.

This area of harassment is ambiguous because different people have different levels of acceptability. What one person would find acceptable in conversation another person might not. This form of harassment can be highly subjective and very subtle. This can lead to problems when people do feel like they’re experiencing it because they might not feel they have the right to say anything or to complain.

In order to file a charge of sexual harassment against an employer, one will need to proceed with the process in specific steps that are laid out by the Equal Employment Opportunity Commission (EEOC). This filing process must be followed correctly and in adherence with specific laws such that the complaint will be investigated. One must file a complaint for discrimination with the EEOC. This complaint must be completed within in 180 calendar days. State and local agencies are bound by this restriction and most have limitations codified which restate the federal requirements. The process for filing is the same in all harassment cases.

As well as there being time limits, there are restrictions for filing harassment charges that differ between state and federal agencies. Federal employees have the same protections against harassment but the process for filing is different. The major difference is that employees in the federal government must go through a mediation process before suit can be brought to bear on the employer. Mediation may be used in the private sector but is not required before suit.

The mediation process is designed to solve the problem before the judiciary is involved in the case. This can be a fast and efficient process but if the mediation fails the EEOC will assign an investigator to look into the case. Should the investigator decide that there has been no violation then the complainant will receive Notice of Right to Sue. The notice is an authorization that allows the individual to file a suit in a court. Should the EEOC discover that the law has been broken, then the EEOC will arbitrate between the employee and employer seeking to find an equitable settlement. Should the EEOC be incapable of mediating a settlement, the case is then referred to legal staff. Depending upon the severity of the violations cases can be referred to the Department of Justice. Whichever agency handles the case, they will decide whether or not to sue the employer for the individual. No matter what decision is made the individual maintains the right to sue (EEOC, 2010). It should be noted that harassment suits like any other lawsuit can be appealed through the court systems all the way to the Supreme Court.

The appeal will be heard by a panel of judges in the judicial circuit in which the case was tried. These judges will not reconsider the merits of the case, but will only look at the record to make sure that correct procedures or process were used. As an example, the trial judge may decide to exclude the testimony of a particular witness. The losing party may argue that the judge made an incorrect decision and that this testimony would have changed the verdict.

An appeal can result in one of four actions. First, it may be dismissed as inappropriate. If it is not dismissed, the appeals court will either affirm (i.e., agree with), reverse (i.e., come to a different conclusion than the trial judge), or remand (send the case back to the trial judge with a requirement to reconsider a particular issue). Remands usually result in a new trial, although the second trial may be much narrower than the first, simply requiring the judge to consider points raised by the Appeals Court judges (Landy, 2005).

Typically, companies defend against sexual harassment claim by using what is referred to as an “Affirmative defense”. This form of defense can work if the company has made efforts to educate and prevent harassment e.g. sexual harassment education, policies, etc…

References

EEOC. “Filing A Charge of Sexual Harassment/Discrimination.” US Government, 2010. Information Guide

Landy, F. J. (2005). Employment Discrimination Litigation: Behavioral, Quantitative and Legal Perspectives. San Francisco: Jossey-Bass.

Paludi, M. Barickman, A. (1991). Academic and Workplace Sexual Harassment. SUNY Press. pp. 2–5.

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