Sexual harassment:
  What is it?  

The behavior that we now call “sexual harassment” has existed for a long time. Men have been groping, taunting, sexually coercing, and assaulting women on the job for many centuries. But the legal concept of sexual harassment did not exist until feminists invented it roughly 30 years ago. The idea of sexual harassment as employment discrimination or as a “tort”—a wrong for which the employer can be sued for monetary damages—is a new and still rapidly evolving area of the law. 

Not until 1986 did the U.S. Supreme Court issue a ruling in Meritor Savings Bank v. Vinson defining sexual harassment as a form of illegal sex discrimination by the employer—not the individual harasser. The harasser who gropes, sexually humiliates, coerces, assaults, or rapes a fellow worker might be arrested and tried for his individual assault or rape under criminal law. But sexual harassment is a civil, not criminal, charge against the employer—not because assault is a crime, but because when employers permit sexual terrorism on the job, it’s harder for (some) workers to fairly earn a day’s pay. And that’s a form of illegal sex discrimination.

The idea that sexual harassment is illegal grows from the 1964 Civil Rights Act and Title VII, which mandates that each employer has a legal responsibility to treat employees equally, based on their work—without unfairly considering race, color, religion, sex, or national origin. And when Anne Smith, but not Andy Smith, is subjected to such things as groping, sexual coercion, incessant comments about her breasts and bottom, daily requests for oral sex when she walks down the hall to go to the bathroom, violent porn pictures left on her desk labeled “what Anne needs,” or a supervisor who bursts in on her in the restroom fondling his crotch and “offering” to service her, then it is harder for Anne Smith to make her living than it is for Andy Smith—based only on her sex. The individual man who corners her and grinds up against her may be tried for criminal assault, but her employer is liable for civil damages if that employer did not halt or otherwise respond appropriately to the discriminatory harassment that led up to it. Allowing Anne to be treated this way means the employer has altered the “terms, conditions, and privileges of employment” (the language of Title VII) based on her sex. In other words: sexual harassment is illegal not because it’s gross or sexual, but because it makes it harder for one sex to earn a paycheck.

What kind of behavior makes an employer liable for “sexual harassment”?

It has to be really, really, really bad. (For examples, refer to "Where Are Working Teens Being Sexually Harassed... And Suing For It?" map.)

Federal courts regularly quote the Supreme Court’s comment that Title VII is not “a general civility code for the American workplace.” Studies have shown that federal trial court judges often have much higher standards for “actionable” sexual harassment (i.e., sexual harassment that a federal judge would allow to go to trial) than do ordinary juries.

Here’s what sexual harassment isn’t: dumb flirting; occasionally stupid or boorish sexual jokes; one or two clumsy passes or requests for dates. To get you a day in court, the behavior must significantly change “the terms, conditions, or privileges of employment,” the language Congress used in Title VII. An occasional embarrassing encounter with a coworker or supervisor doesn’t rise to that standard. Sexual harassment must be “severe or pervasive”—the magic legal words used in the Supreme Court’s very first definition of when an employer should pay for sexual harassment.

So what is it? The Supreme Court has laid out two kinds of actionable sexual harassment:

  • “Quid pro quo,” or “this for that.” For example, the employer or a manager says, “I will give you that promotion if you will have sex with me”, or, “I will fire you if you will not have sex with me.”
    • This can include what lawyers and courts call “constructive discharge.” That means, in effect, that the way you are treated is so bad that it would drive anyone to quit—and is, in effect, a firing. Being sexually assaulted by a supervisor is often counted as “constructive discharge.” Who would go back after that?
  • “Hostile environment.” To be actionable, all non-quid pro quo harassment must be “severe” or “pervasive.” This is a very high standard that is hard to meet. This includes such things as regular grinding, groping, fondling, and intrusive and intimate sexually hostile conversation; sexual assault; rape; stalking; and sexually charged murder threats.

The Supreme Court stressed that “common sense” and “social context” are enough to let the ordinary person see the difference between "simple teasing or roughhousing” and “conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.” In other words, any reasonable person should be able to tell the difference between a coworker’s impulsive slap on the butt during an after-work basketball game and a supervisor who grinds his pelvis into a worker’s backside or presses himself up against her breasts whenever he catches her alone at the cash register or in the stockroom. The first is in fun. The second changes the worksite into an environment so hostile that a reasonable person would be wary of going to work. That’s sexual harassment.

—E.J. Graff

© Schuster Institute for Investigative Journalism, Brandeis University, Waltham, MA. All rights reserved.