Addressing the Growing Inadequacies of the <Emphasis Type="Italic">Ellerth</Emphasis>/<Emphasis Type="Italic">Faragher</Emphasis> Affirmative Defense: Fashioning a Sensible and Feasible Solution

Public policy seeks an equitable balance between the rights and duties of both employers and employees in creating a workplace free of sexual harassment. This goal is particularly difficult to achieve when supervisors create a hostile work environment. The U.S. Supreme Courts decisions in Ellerth and Faragher created an affirmative defense against vicarious liability for employers, but subsequent applications of these rulings have been inconsistent and problematic. Courts and legislators need to (1) choose the appropriate standard of employer liability for sexual harassment committed by supervisors, and (2) decide what, if any, defenses are available to employers when employees bring claims of sexual harassment. We conclude that holding employers strictly liable while allowing for the limitation of damages based on avoidable consequences, as recently adopted by the California Supreme Court in McGinnis, is preferable to other liability standards and defenses.     

An Affirmative Defense to Sexual Harassment by Managers and Supervisors: Analyzing Employer Liability and Protecting Employee Rights in the United States

Sexual harassment in the workplace is a serious worldwide employment problem. In the United States, courts have taken an increasingly expansive view of both employers' obligations and employees' rights in dealing with the issue. Landmark decisions of the U.S. Supreme Court addressing harassment by supervisors have sought to provide further guidance to employers in order to prevent harassment and refine their obligations. Yet despite the Court's efforts, harassment claims brought on by supervisor conduct continue to be a matter of great concern. This article offers a brief overview of U.S. sexual harassment law including its affirmative defense and provides a decision protocol for employers operating in the U.S. to follow in determining whether or not an affirmative defense can be confidently asserted. Finally management practices that respond to legal principles of an affirmative defense to prevent liability and protect employee rights are presented and discussed.     

Victims' and observers' perceptions of sexual harassment: implications for employers' legal risk in North America

The way in which victims and observers perceive potentially harassing behaviours and employers' responses to sexual harassment complaints significantly affect organizations' liability risk under sexual harassment law in North America. This article examines studies in the sexual harassment literature that focus on the perceptions of sexual harassment victims and observers, and identifies legal and extra-legal factors that influence their harassment judgments. The implications of research findings for employer liability and future research are discussed.     

Preventing Sexual Harassment: The Effect of Multiple Training Methods

Subjects were presented with multiple training methods to determine their effect on sensitivity to possible sexual harassment situations. The training methods used were case analyses, commercially produced videotape episodes, and an open-ended questionnaire. Subjects were found to be more sensitive to incidents of possible sexual harassment when videotape episodes were combined with case analysis. The pattern of gender differences supported previous research showing perceptual differences in ambiguous cases. Research-based suggestions for sexual harassment training programs are offered.     

Breaking the Silence: Creating User-Friendly Sexual Harassment Policies

Numerous surveys suggest that while the number of women in the work force who have experienced sexual harassment is high, the number of those who are willing to actually report incidents of harassment is far lower. To better understand the consequences of sexual harassment to women and the legal implications to the corporation, we discuss briefly the psychophysiological consequences experienced by victims, followed by a review of sexual harassment law. Next we discuss the results of our survey based on a national sample of 1500 working women. Our study examines the reasons underlying women's reluctance to report sexual harassment and identifies policies and procedures to encourage the reporting of sexual harassment. Our findings are discussed in terms of the need for organizations to develop more user-friendly sexual harassment reporting procedures.     

The legal history of work-related sexual harassment and implications for employers

Over the years, the courts have come to consider sexual harassment as a kind of sex discrimination under Title VII of the Civil Rights Act of 1964. Employers are held liable for sexual harassment, and have an affirmative action obligation to eliminate sexual harassment from the workplace. The courts and the EEOC Guidelines have defined sexual harassment as tangible employment consequences or behavior that creates a hostile or offensive working environment. Employers can limit their liability by creating a system to detect sexual harassment and to remedy it promptly. Suggestions to wards developing a strong policy to eliminate sexual harassment from the workplace are given.     

The Supreme Court Holds Class on Sexual Harassment: How to Avoid a Failing Grade

This article analyzes the three recent sexual harassment cases decided by the U.S. Supreme Court in its 1997–98 session. The purpose is to highlight the most common mistakes made by management as evidenced by the case history on this topic. Each mistake is described in the context of the cases and with reference to widespread business practices. The explanation of each error is followed by a brief practical directive to aid management in formulating appropriate policies and practices on that topic. A concluding section describes the desired result of each recommendation from the perspective of the employees. This article gives managers a quick checklist to ensure that their policies and practices avoid common problems and are up to date with the latest court interpretations on sexual harassment.     

Same-Sex Sexual Harassment: A Legal Assessment with Implications for Organizational Policy

The legal debate over sexual harassment (SH) has taken an interesting turn concerning the controversial issue of same-sex sexual harassment (SSSH). Disagreement among circuit courts' decisions propelled the U.S. Supreme Court to grant full review to the SSSH case of Oncale v. Sundowner Offshore Services, Inc., et al. (1996) [83 F.3d 118 (5th Cir. 1996) [online]. Available: http://laws.findlaw.com/5th/9530510cvl.html]. In a unanimous decision, the Justices indicated that (a) SSSH not only violates Title VII of the Civil Rights Act of 1964 and (b) that the law does not exclude the idea that one heterosexual male can sexually harass another heterosexual male [Oncale v. Sundowner Offshore Services, Inc., et al., S. Ct. 96-568, Lexis 1599 (1998)]. This paper reviews the history of SSSH law and discusses the implications of the Oncale decision for SH policies and procedures.     

A descriptive study of behavioral responses of sexual harassment targets: Implications for control theory

The problem of sexual harassment in the workplace can be viewed within the framework of personal control. In particular, sexual harassment can be viewed as an infringement upon employees' rights to control the conditions under which they work. Targets of harassment must tolerate sexual harassment to avoid negative consequences such as termination, demotion, distasteful remarks or jokes, and so forth. Previous research (Wortman & Brehm, 1975; Greenberger & Strasser, 1986) into personal control has drawn upon two theories—reactance theory and learned helplessness theory—to explain behavioral responses to infringement upon personal control. The purpose of this study is to investigate the efficacy of personal control theories in explaining responses of targets who file discrimination suits.     

Disciplining sexual harassers: What’s fair?

To avoid liability for hostile environment sexual harassment under Title VII of the Civil Rights Act, and to minimize the negative effects of such conduct on victims’ morale and perhaps their performance, employers must implement remedial measures that are capable of ending the harassment or even preventing it. Determining what constitutes adequate remedial action is difficult, and employers may administer excessively severe disciplinary penalties to ensure legal compliance. But such a response would contravene the tenets of just cause and industrial due process. This investigation examines relevant arbitration decisions to determine how labor arbitrators have balanced these competing interests. That is, it delineates the criteria that should be used to ensure that the disciplinary penalties levied against employees who sexually harass others are both adequate and fair.     

Racial harassment: Case characteristics and employer responsibilities

This article examines the socio-business issue of racial harassment in the workplace. For two decades, the federal judiciary has been defining and refining the elements of the offense within the parameters of Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The Supreme Court’s decision to hear arguments for the first and only time on one of the important aspects of the developing doctrine focused considerable attention on this workplace problem in 1989. The Civil Rights Act of 1991 provides limited money damages to victims of discrimination under Title VII of the Civil Rights Act of 1964, whereas Section 1981 of the Civil Rights Act of 1866 provides unlimited damages to the victims of discrimination and race harassment. The authors discuss the legislative and judicial foundations of race harassment with respect toPatterson v. McLean, provide a profile and analysis of racial harassment cases (1971–1987), and conclude with a discussion of employer liability and recommendations for management.     

Balancing Employee Rights and Responsibilities in Sexual Harassment Cases Following <Emphasis Type="Italic">Faragher</Emphasis> and <Emphasis Type="Italic">Ellerth</Emphasis>: An Employer’s Perspective

In 1998, the United States Supreme Court issued two opinions that delicately balanced the responsibilities of employers and employees in fulfilling Title VIIs goal of eliminating discrimination in the workplace. Those two opinions—Faragher v. City of Boca Raton and Burlington Industries,Inc. v. Ellerth—require employers to implement measures to prevent harm to their employees, but also require employees to take advantage of those measures to avoid harm. Numerous articles have evaluated the responsibilities of the employer under Faragher and Ellerth. But little, ifany, emphasis has been placed on the responsibilities of the employee. This article evaluates the role of the employee in avoiding harm and, analyzing recent decisions from the Second and Third Circuits, argues that the employees responsibilities shouldplay an integral part in evaluating sexual harassment liability.     

Retaining Employees Through Anti–Sexual Harassment Practices: Exploring the Mediating Role of Psychological Distress and Employee Engagement

The present study utilized sexual harassment, organizational climate, and engagement theories to articulate a process model of how perceived anti–sexual harassment practices and sexual harassment incidents relate to affective commitment and intentions to stay. The authors hypothesized that perceived anti–sexual harassment practices and sexual harassment incidents would relate to employee engagement, both directly and indirectly through psychological distress. Moreover, psychological distress and employee engagement were hypothesized to mediate the relationships of perceived anti–sexual harassment practices and sexual harassment incidents with affective commitment and intentions to stay. Study findings supported these hypotheses within two subsamples of female (N = 3,283 and 3,207) and male (N = 3,460 and 3,300) military personnel. © 2014 Wiley Periodicals, Inc.     

Protecting the Rights of Alleged Sexual Harassment Perpetrators: Guidance from the Decisions of Labor Arbitrators

Recent evidence indicates that sexual harassment in the workplace continues to pose a problem for organizations. Using published arbitration awards, the current study examines the critical issues involved in discipline decisions of alleged sexual harassment perpetrators. Content analysis of 92 cases enabled the examination of critical judgment factors considered by arbitrators examining the disciplinary penalties imposed by management. Elements of the arbitrator's judgment including the just cause standards, mitigating circumstances, severity of harassment, and length of harassment were examined. The results of the analyses are discussed with an emphasis on the lessons provided for effective management practices.     

Institutional strategies for dealing with sexual harassment

Sexual harassment is being recognized as a pervasive and highly visible problem at an institutional level. As a consequence institutions are establishing policies and procedures to address this issue. In view of recent legal decisions, sexual harassment can have negative consequences for the institution as well as the harassee; thus, in some institutions, sexual harassment is viewed as a common problem shared by employers and employees. This article addresses institutional strategies that have proven effective in proactively dealing with sexual harassment in the workplace.     

Sexual harassment: Rights and responsibilities

This article briefly reviews the development of a philosophy about sexual harassment at work and legal protection for victims of harassment. It then focuses on the rights and responsibilities of three groups affected by sexual harassment: the target of harassment, the alleged harasser, and the employing organization. A discussion follows regarding the current status of the rights and responsibilities of the relevant parties as well as opportunities for abuse of rights and abnegation of responsibilities.     

Legal Protection From Discrimination Based on Sexual Orientation: Findings From Litigation

Since 1964 with the enactment of Title VII of the Civil Rights Act, the courts have held that although Title VII prohibits discrimination because of sex, sex has been construed to mean gender, but gender and sexual orientation are different. Traditionally sexual discrimination has been interpreted to protect women in male/female encounters. Thus protection for homosexuals based on sexual orientation has not been covered. However, there are some interesting aspects to the concept of discrimination due to sexual orientation, including defining same-sex harassment as being harassment, equal opportunity harassment, and sexual stereotypes. In addition, how homosexuals may be protected under state laws, unions, company policy, and the constitution is discussed as well as protection for public sector employees. An analysis of 98 litigated cases alleging discrimination based on same sex or sexual orientation harassment led to the development of a logit model predicting future case outcomes based on case characteristics. These are type of harassment, physical contact, type of employees, and whether there was equal opportunity harassment. Implications from the study are that the issues of protection from discrimination are complex and one cannot necessarily assume that this type of discrimination is not protected. Recommendations for more effective managerial actions are provided.     

The Paramour’s Advantage: Sexual Favoritism and Permissibly Unfair Discrimination

Despite the prevalence of sexual favoritism in the workplace, there is much debate over whether this phenomenon rises to the level of prohibited discrimination and harassment. While the United States Supreme Court has not yet involved itself in adjudicating issues of sexual favoritism, the Equal Employment Opportunity Commission, however, has issued guidelines. The California Supreme Court recently addressed the “sexual favoritism as sexual harassment/discrimination” issue and, absent better guidance from the federal courts, the California decision provides interesting insights for the legal and business communities. This article explores key issues involving workplace romances, sexual favoritism, and Title VII’s prohibition of sexual harassment as an illegal form of discrimination based on sex. We use the recent California Supreme Court decision in Miller to illustrate the legal and managerial challenges facing policy makers and management practitioners. We conclude with a discussion of policy alternatives for creating a discrimination- and harassment-free workplace while effectively managing workplace romances and instances of sexual favoritism.

Clarifying the Boundaries of Sexual Harassment and Employer Liability: Judicial Application of Harris v. Forklift Systems, Inc.

Many had anticipated that Harris v. Forklift Systems, Inc., the first significant Supreme Court ruling on sexual harassment since 1986, would clarify the boundary between merely offensive conduct and unlawful conduct, and would offer greater guidance on when an employer is liable for the creation of an abusive (or hostile) work environment. However, the Harris court handed down only a short, narrow decision that left these areas largely unresolved, and, accordingly, it was widely criticized for circumventing contentious issues and for perpetuating the vague framework under which abusive work environment claims are now analyzed. This article examines a representative cross-section of federal and state decisions that have interpreted and applied Harris to evaluate whether courts have achieved any consensus on what constitutes an abusive work environment and on when an employer is liable for this type of sexual harassment.     

The effects of diversity on sexual harassment: Some recommendations for research

This article speculates about some of the possible effects of increasing organizational diversity upon sexual harassment, and suggests some potential research opportunities and directions. Discussion and research recommendations center around the following aspects of sexual harassment: (1) antecedents of harassment; (2) behaviors exhibited; (3) perceptions of behaviors; (4) immediate reactions of harassees; and (5) longer-term individual and organizational outcomes of sexual harassment.