Although racial, religious, ethnic or sexual harassment are all forms of disparate treatment, a different legal analysis is used for harassment claims.
There are two types of sexual harassment, quid pro quo and hostile environment. As discussed below, the Supreme Court has recently indicated that the use of these two categories is less important when the harasser is a supervisor. See Farragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998).
- Quid pro quo "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, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual . . . ." EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a)(1) and (2). See Bryson v. Chicago State University, 96 F.3d 912, 915 (7th Cir. 1996) (quid pro quo harassment occurs where "submission to sexual demands is made a condition of tangible employment benefits").
- Hostile environment "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when . . . (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." EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a)(3). The courts generally require that the offensive behavior be fairly extreme in order to constitute a hostile environment. Factors that the courts consider include "the frequency of 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." Harris v. Forklift Systems, 510 U.S. 17, 23 (1993). Even given these general guidelines, it is often difficult to predict whether a given set of facts will be sufficiently severe to be considered a hostile environment. See, e.g. Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 533-35 (7th Cir. 1993) (co-worker on different occasions rubbing leg, kissing, and leaping out at plaintiff from behind a bush not sufficiently severe or pervasive); Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353-54 (7th Cir. 1995) (co-worker taking victim to striptease bar, shouting for her to get up and perform, comparing her breasts to those of the dancers, and propositioning her would not have been enough for a claim).
The plaintiff is not required to prove psychological harm or tangible effects on job performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). "Objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998).
- The Meritor Decision In Meritor Savings Bank v. Vinson, 477 U.S. 57, 70-73 (1986), the Supreme Court held that an employer is not automatically liable for harassment by a supervisor in a hostile environment case, and that courts should look to traditional agency principles to determine liability.
- Harassment by a co-worker When the harasser is a co-worker, the employer is liable only if it was negligent, that is, only if it knew or should have known of the harassment and failed to take reasonable corrective action. McKenzie v. IDOT, 92 F.3d 473, 480 (7th Cir. 1996); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013-4 (7th Cir. 1998) (where plaintiff did not complain to anyone about harassment and no one else complained on her behalf, her only chance at prevailing would be if the employer had reason to know of the harassment on its own).
- Harassment by a supervisor The Supreme Court recently held that an employer is liable for actionable hostile environment sexual harassment by a supervisor with immediate (or higher) authority over the harassed employee. Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Farragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). If the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment, the employer is liable and has no affirmative defense.
When no tangible employment action is taken, the defending employer may raise an affirmative defense to liability or damages. The defense has two elements: "(a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Farragher, 118 S. Ct. at 2270; see also Burlington Industries, 118 S. Ct. at 2292-93
- Same sex harassment An employer may be liable for harassment by a supervisor or co-worker who is the same gender as the target of the harassment, provided that the harassment was motivated by the plaintiff's gender. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998) (holding sex discrimination consisting of same-sex sexual harassment is actionable under Title VII).
Racial or Ethnic Harassment
Workers who are subjected to a higher level of criticism or who are subjected to racial or ethnic jokes, insults, graffiti, etc. may be able to establish a violation of Title VII. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993); Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986). The legal standards have generally been the same as those for a sex-based hostile environment claim, as detailed above. It is likely that those standards will change to reflect the change in law regarding sexual harassment by supervisors announced recently by the Supreme Court in Farragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), and Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998). See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998 (applying vicarious liability principles announced in Ellerth to race discrimination termination case); Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264 (10th Cir. 1998).