Sexual harassment is
far more prevalent in the workplace than most people realize. A Cornell
Law Review article entitled "Exacerbating
the Exasperated: Title VII Liability of Employers for Sexual Harassment"
reported that between 40% to 90% of women in the United
States workforce have been the victims of some form of sexual
harassment on the job. As even conservative Ninth Circuit Judge
Kozinski recognized: "It is a sobering revelation that every woman
- every woman – who has spent time in the workforce in
the last two decades can tell at least one story about being the
object of sexual harassment."
The majority of incidents,
particularly egregious incidents, occur between a supervisor and
his subordinate. One study of Fortune 500 companies found that
almost two thirds of sexual harassment complaints were brought
against a woman’s immediate supervisor or another person with
greater power. Other studies have shown that half of all sexual
harassers are the direct supervisors of their target, and that
supervisors are more likely to engage in and get away with more
severe forms of harassment.
The reason is plain: power is
central to a supervisor’s harassment of a subordinate. As a
result, a victim of sexual harassment is more likely to submit to
and less likely to complain when the harasser is a supervisor. Not
only do supervisors have, by definition, greater authority and
power than do their subordinates, but they also control the norms
of the workplace. In addition to determining assignments,
evaluating performance and recommending promotions, they influence
the "climate" of work: what behaviors are acceptable, what
standards exist and how communication occurs. Individuals in
higher status positions believe and are believed to have the right
to make demands of those in lower status roles. Some managers view
harassing behavior as an extension of that right. They expect
lower status individuals to comply.
There are two kinds of sexual harassment: "quid pro quo"
and "hostile environment."
Quid pro quo, a
Latin term meaning "this for that," occurs when your boss
offers you benefits, or threatens to change your working
conditions, based on your response to his demands for sexual
favors. "I'll give you a raise
if you go out with me...." or "I'll demote you if you don't
have sex with me" are examples of "quid pro quo"
harassment. Hostile
environment harassment occurs when physical, verbal, or
visual sexual harassment is severe or pervasive enough to
create a hostile or abusive work environment. This type of
harassment does not require a loss or threat of loss of your
job, or the promise of benefits. Comments about your
body, sexual remarks, pornographic pictures displayed at the
workplace, and touching and grabbing may all create a
hostile work environment. In addition, the
conduct must be unwelcome to you. If you like, want, or
welcome the conduct, then you are not being sexually
harassed. And if the conduct does not relate to your sex or
have sexual references, it's not sexual
harassment.
A single incident of
inappropriate behavior is unlikely to be considered sexual
harassment unless it's severe. For example, a single
incident of rape or attempted rape would likely constitute
sexual harassment (as well as violate criminal laws).
However, a single unwanted request for a date or a single
sexually suggestive comment, while offensive, may not be
defined as sexual harassment. But a number of incidents that
are relatively minor may amount to sexual
harassment.
Because of the workplace
hierarchy, the sexually harassed woman is unlikely to complain.
Often, she is economically and emotionally dependent on her
aggressor. Moreover, the abuse is humiliating, so the victim is
motivated to keep it secret. Fearful of losing her job and
economic security, she keeps quiet. She also may fear
retraumatization by the legal system if she seeks recourse from
higher authorities. Not surprisingly then, studies have shown
repeatedly that very few individuals report their experiences or
lodge an official complaint. Indeed, a review of ten studies
revealed that only ten to fifteen percent of women either
responded assertively to or reported the harassment. More than
fifty percent of victims simply do and say nothing.
Until 1991, Title VII entitled sexual harassment victims to
collect only back pay, lost wages and, if they had been forced to leave, to be
reinstated in their jobs. These women, if they won their
cases, received a small monetary amount and an intolerable job back. Title VII
of the Civil Rights Act of 1964, as amended in 1991, strengthened the remedies
for sexual harassment. It allows
sexual harassment victims to recover compensatory damages beyond back pay, and
may do so in a jury trial. Moreover, these damages can
encompass "future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses." Plaintiffs can also collect
punitive damages, if they can demonstrate that an employer acted with malice
or with reckless or callous indifference.
Against this backdrop, in 1998 the
Supreme Court decided in Ellerth v. Burlington Industries, No. 97-569 and
Faragher v. City of Boca Raton, No. 97-282 that companies may be held vicariously
liable if supervisors sexually harass workers even if the employees do not
report the harassment and suffered no tangible loss. By making employers liable for
supervisors' sexual harassment encourages an employer, as no
other regime does, to exercise the greatest possible care in
screening prospective managers and in training, supervising and
monitoring supervisory personnel. It gives employers an incentive
to put effective policies and training programs in place. In fact,
54% of Fortune 500 employers admitted in one survey that fears of
legal exposure prompted them to establish company policies against
harassment. And experience has shown these policies and programs
work. Companies that have implemented sexual harassment training
programs have reported reduced numbers of claims that develop into
lawsuits.
Society has a great stake in
ensuring that the alarming rate of sexual harassment goes down. A
Cleveland State Law Review Article entitled "The
Present State of Sexual Harassment Law: Perpetuating Post Traumatic Stress
Disorder in Sexually Harassed Women" reported that 90%
to 95% of sexually harassed women suffer from some
debilitating stress reaction, including anxiety, depression,
headaches, sleep disorders, weight loss or gain, nausea, lowered
self-esteem and sexual dysfunction. They experience job-related
costs as well: from job loss, decreased morale, decreased job
satisfaction to irreparable damage to interpersonal relationships
at work. One study found that fully 50% of women who filed a
complaint in California were fired; another 25% resigned due to
the stresses of the complaint process or the harassment itself. A
study of federal employees reported that those who have been
harassed lose $4.4 million in wages and 973,000 hours in unpaid
leave each year.
The costs are borne not only
by the victims of harassment; they create financial havoc for
employers as well. Sexual harassment costs a typical Fortune 500
company $6.7 million per year in absenteeism, low productivity and
employee turnover. That does not include additional costs for
litigation expenses, executive time and tarnished public image
should a case wind up in court.
It is, therefore, imperative
that employers do everything within their power to discourage, if
not eliminate, all incidents of sexual harassment. Making them
liable when supervisors abuse their power over subordinates is one
small step in this direction. If they are made responsible,
employers will have the incentive to create a workplace free of
harassing behavior.