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.     

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.     

Dissection and Analysis of the Recent Cases on Employment Discrimination Under Title VII of the Civil Rights Act of 1964

This article begins with an overview of the existing law of employment discrimination under Title VII of the Civil Rights Act of 1964, within which it explains disparate treatment discrimination, disparate impact discrimination, pregnancy discrimination and sexual harassment. This article then dissects the recent U.S. Supreme Court and U.S. Courts of Appeal cases that have interpreted and provided specificity to various concepts used in the application of Title VII. This article then analyzes the details of the new substantive aspects of the law of employment discrimination, the philosophical positions within the cases, and how the intricacies of employment discrimination law are applied.     

Sexual Harassments: Criteria for difining hostile enviorment

Sexual harassment in the workplace continues to be one of the most controversial and complex legal and ethical issues facing empolyers. The U.S. Supreme Court's June 1986 decisiion inMeitor Savings Bank v. Vinson, which applied Title VII of the Civil Reights Act to situations involving sexual harassment, is discussed. The Court's definition of hostile environment is reviwed, and federal court cases interpreting the Supreme Court's pronousncements are examined. The cases provide guidance on the kinds of situations that result in employer liability for sexual harassment. A primanry conclusion is that employers may easily avoid liability by exercising learned judgment and sound management practices.     

Defining the Problem and Problems of Definition: Legal Standards for Expanding Issues in Sexual Harassment

Sexual harassment has been a difficult area of legal interpretation. Legal frameworks used in other areas of Title VII of the Civil Rights Act have not been used in the development of standards by which to judge on the job harassment. Specific difficulties analyzed are the status of group versus individual protection, the notion that harassment is a correctable violation, problems of defining a hostile environment and determining harm, adverse effects on third parties, harassment without sexuality, and same sex harassment. Disagreements between the Circuit Courts and the EEOC are highlighted and effects on individuals and organizations are discussed. Suggestions for organization policy are made.     

Impact of Same-Sex Harassment and Gender-Role Stereotypes on Title VII Protection for Gay, Lesbian, and Bisexual Employees

When victimized in the workplace, gay, lesbian, and bisexual (GLB) employees often find themselves without recourse as Title VII does not recognize sexual orientation to be a protected class. We suggest that recent court decisions that have expanded Title VII to protect individuals from discrimination based upon violations of gender norms can be used to provide a basis for protection of GLB individuals under this statute. Using a review of the role of gender norms in the workplace as well as an analysis of recent court decisions and the Congressional debates on the Federal Marriage Amendment as well as the wording of the Defense of Marriage Act [Defense of Marriage Act (DOMA), Pub. L. 104-199, Stat. 2419 (September 21, 1996)], this paper provides the theoretical background and conceptual argument (but does not attempt to make the legal argument) to suggest that same-sex harassment and discrimination are considered violations of societal gender norms and should therefore be protected under the expanded coverage of Title VII.     

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.     

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.     

Simulation Estimation of the Convergence of the Black–White Earnings Gap and Income Dynamics*

In this article, the effect of Title VII of the 1964 Civil Rights Act on the convergence of the black–white earnings gap and income dynamics is studied through the dynamic panel Tobit models implemented using the simulation estimators. It is found that the black–white earnings gap declined moderately after the implementation of Title VII of the 1964 Civil Rights Act in 1965. Based on the simulation studies of wage trajectories, it is also found that the positive impact of the Civil Rights Act on the convergence of the black–white earnings gap is especially significant for the group of middle‐aged and highly educated workers. Moreover, the rich dynamic structure of the earnings process is identified from the Current Population Survey‐Social Security Administration data set. It is shown that the various sources of dynamics in the earnings process are dominated by spurious state dependence for both blacks and whites.     

Major EEO issues relating to personnel selection decisions

This paper examines recent EEO (Equal Employment Opportunity) case law precedents relating to personnel selection, most notably hiring, training, promotion and downsizing. The statutes referenced include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, the Americans with Disabilities Act (ADA) of 1990 as amended by the ADA Amendments Act of 2008 (ADAAA), Constitutional claims, the Civil Rights Act of 1991 (CRA-91), and Executive Order 11246 on Affirmative action. Seven topics are featured, including: (I) disparate treatment theory, (II) adverse impact theory in the ADEA, (III) adverse impact theory in Title VII, (IV) affirmative action based on operational needs, (V) key ADA rulings and the ADA amendments Act of 2008 (ADAAA), (VI) retaliation, and (VII) mandatory binding arbitration agreements. The case law surveyed reveals costly mistakes employers and HR managers can make, but which can be avoided with proper methods and policies. Some issues may require professional help (e.g., developing and validating selection tests), whereas others (e.g. retaliation), can be addressed in-house with knowledge of policies and procedures recommended by the EEOC to prevent problems from occurring, and to quickly correct them if they occur.     

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.

Compromising the Uncompromisable: Discrimination

ABSTRACT The market system contains fail-safe mechanisms to help those who are subjected to discrimination. A consistent libertarian political philosophy must come out for total repeal of the Civil Rights Act of 1964. The law either is unnecessary or irrelevant. Efforts to claim that special legal privileges for minorities are reparations for years of enslavement or the equivalent are unconvincing. These "solutions" punish innocent people for the evil doings of others. This essay concludes with some thoughts about the forced transfer of some property now owned by whites to some blacks. A problem of social justice exists but it is not the problem addressed by the Civil Rights Act of 1964.     

Resolving the conflict between clients’ privacy rights and employees’ equal employment opportunity rights

It is unlawful under Title VII of the Civil Rights Act for employers to discriminate against applicants or employees because of their sex unless sex is a bona fide occupational qualification (BFOQ). During the past two decades, a number of courts were asked to decide whether sex is a BFOQ for the purpose of protecting clients’ privacy rights (i.e., whether employers could insist that employees be of the same sex as their clients for those jobs which required employees to touch or view clients’ bodies in various stages of undress). This investigation examined relevant judicial opinions rendered throughout the United States to determine how the courts resolved this conflict between clients’ privacy rights and employees’ equal employment opportunity rights.     

A Model for Predicting Outcomes of Sexual Harassment Complaints by Race and Gender

Organizational scholars have studied the impact of sex on sexual harassment outcomes but left unexplored the influences of race. Thus, we use social identity theory to explore the role of race stereotypes and their influences on sexual harassment outcomes. We posit that stereotypes of African-American women tend to be much more negative than those of white women and this serves to marginalize their position both as victims of sexual harassment as well as complainants.

Employment Discrimination and the International Workplace: A Review of Recent US Court Rulings

The extraterritoriality clause in the Civil Rights Act of 1991 amended Title VII and the ADA to include employment discrimination protection for US citizens working abroad for US employers. A review of recent court rulings demonstrates an absence of lawsuits involving alleged violations of the extraterritorial provision. Instead, recent cases show that Americans working outside of the US are filing charges against foreign employers rather than US employers and applying state level employment statutes rather than federal legislation. In addition, non US citizens are exhibiting a trend toward invoking US federal and state statutes against US employers. These cases are reviewed and implications discussed for managing employment relations in an increasingly international workplace.

Parsing Work Environments Along the Dimensions of Sexual and Non-Sexual Harassment: Drawing Lines in Office Sand

Laws addressing harassment at work have evolved considerably since court systems first recognized that (sexual) harassment is illegal. Now, managers must worry about protected classes other than sex (e.g., race, age, etc.), and the effects of harassment on bystanders as well as victims (i.e., ambient harassment). Understanding these newer conceptualizations of workplace harassment is critical for mangers dealing with an increasingly complex array of possible work environments, only some of which are illegal. Toward this end, we present a taxonomy of eight possible work environments, created by parsing the legal definition of sexual harassment (i.e., the first-recognized type of hostile work environment). The taxonomy illustrates the evolution of law in this area, and highlights the multidimensional nature of workplace harassment. Also discussed are potential complications arising from how a reasonable person and a victim might interpret behavior. Managers using the taxonomy may better assess whether their work environments have crossed the line, or facilitate movement from less- to more-desirable work environments.

Racial harassment and job satisfaction in South Africa: the moderating effects of career orientations and managerial rank

Employee job satisfaction is a strong predictor of pivotal individual and organizational outcomes, e.g. commitment, productivity, retention. This study examines the mediating role of workplace racial harassment in the association of employee racioethnicity and job satisfaction in the South African context. Furthermore, this study investigates the moderating effects of career-related variables, i.e. career orientations and managerial rank. Results of a survey of 154 employees in South Africa indicate that black South Africans experience more workplace racial harassment than white employees and thus show lower job satisfaction. Moreover, the detrimental effects of workplace racial harassment on job satisfaction are more pronounced among highly career-oriented individuals and/or among employees with no or low managerial rank. The implications of these findings for theory and practice are discussed.     

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.     

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.