The Legal Evolution of Sexual Harassment

Abstract

In this article, we examine the legal evolution of sexual in the workplace. The U.S. Supreme Court's 1993 unanimous decision in Harris v. Forklift Systems, Inc., clarified some aspects of law. Here, a lower court ruling was overturned that would have restricted the chances of persons successfully bringing sexual suits. Just prior to the handing down of this decision, the Equal Employment Opportunity Commission (EEOC) issued proposed guidelines intended to clarify what constitutes and what obligations employers have in preventing and eliminating harassment. The guidelines apply broadly to harassment based on race, color, religion, gender, national origin, age, or disability (emphasis added). The Supreme Court regarded the proposed regulations sufficiently authoritative to discuss them in the Harris decision. As will be seen, the judicial and executive branches of the government have begun developing a coordinated approach to combatting sexual in the workplace. The discussion here, as the title of this article suggests, is primarily legal in nature. A thorough review of the literature is forgone for an examination and analysis of primary legal sources. These sources include decisions made by the federal courts and guidelines issued by the Equal Employment Opportunity Commission. Major emphasis is given to what is known as hostile-environment harassment, since the subject has been the main focus of attention in sexual court cases. Sex Discrimination, Sexual Harassment, and the Harris Case The existence of sex discrimination in employment is well documented. Women's salaries are typically lower than those of men (Lee, 1989; Willoughby, 1991), and discrimination often presents a glass ceiling that thwarts women in advancing their careers (Bullard and Wright, 1993; Guy, 1993; Kelly, et al., 1991; Merit Systems Protection Board, 1992). Those who are sexually harassed can experience severe harm in terms of their careers, personal finances, and mental health (Kreps, 1993; McCann and McGinn, 1992; Wagner, 1992). Discrimination can lead to lower overall productivity of an organization's work force. A wide assortment of laws has addressed sex discrimination. The Equal Pay Act of 1963 required equal pay for equal work between the sexes (Aldrich v. Randolph Central School District, 1992; Greenlaw and Lee, 1993). Title VII of the Civil Rights Act of 1964 prohibited sex discrimination with respect to terms, conditions, and privileges of employment (such as in hiring, promoting, and firing employees). An amendment to Title VII, the Pregnancy Discrimination Act of 1978 prohibited discrimination based on pregnancy, childbirth, or related medical conditions (Gedulig v. Aiello, 1974; General Electric v. Gilbert, 1976). The U.S. Supreme Court in two Title VII-based cases banned sex discrimination with respect to retirement plan contributions and benefits (City of Los Angeles, Department of Water and Power v. Manhart, 1978; Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 1983). Special protections against various forms of sex discrimination are available to government workers through the due process clause of the Fifth and Fourteenth Amendments, and the equal protection clause of the Fourteenth Amendment. In addition, state and local cases may be filed using the Civil Rights Act of 1871. The cases are known as Section 1983 suits, since the 1871 legislation is codified at 42 U.S.C. 1983. The topic of sexual is of increasing importance as women--the usual subjects of harassment--have come to constitute a greater proportion of the work force. In a study of federal workers, 42 percent of the women reported being sexually harassed within a two-year period (Merit Systems Protection Board, 1988; 2). Half or more of working women can expect to be sexually harassed during their careers (National Council for Research on Women, 1991; 9). …