Sexual Harassment in the Workplace: A United States Perspective
| Published date | 01 September 2005 |
| DOI | 10.1177/135822910500700403 |
| Date | 01 September 2005 |
International
Journal
of'
Discrimination
and
the
Law,
2005,
Vol.
7,
pp.
29-85
1358-2291/2005
$10
©
2005
A B Academic Publishers. Printed
in
Great Britain
SEXUAL
HARASSMENT
IN
THE
WORKPLACE:
A
UNITED
STATES
PERSPECTIVE
JOSEPH M. KELLY, 1 DAVID
D.
KADUE2 AND ROBERT
J.
MIGNIW
SUNY
College
at
Buffalo,
USA
ABSTRACT
Sexual harassment litigation has increased significantly within the United States.
It
is
a cause
of
action that was created by the judiciary to enable an employee to work
in an atmosphere free from a sexually hostile environment. Some parameters
of
U.S. sexual harassment law are still unclear,
but
the law now applies to men and
women, and the burden
of
proof
has gradually been eased.
Under judge-made law, an employer
will
always be liable when harassment
culminates in a tangible employment detriment. The employer
is
also automatically
liable when a supervisor creates a hostile environment, unless the employer can
prove that it has taken reasonable steps to prevent
or
correct harassment and that
the employee unreasonably failed to use the employer's anti-harassment procedures.
Employers are also liable for harassment perpetrated
by
supervisors, co-workers and
non-employees if the employer
is
negligent in failing to prevent
or
correct harass-
ment. Employers are thus
well
advised to formulate and enforce an anti-harassment
workplace policy that allows a complainant to have a thorough, impartial and
prompt investigation
of
any allegation
of
harassment.
Complainants can elect to use federal-law and state-law remedies for sexual
harassment/discrimination. The state law, unlike the federal, may allow unlimited
tort-like damages. A complainant may also allege common law causes
of
action
such as infliction
of
emotional distress.
BACKGROUND
Sexual
harassment
received
enormous
publicity as a workplace issue in
the
United
States in
October
1991,
during
the confirmation hearings
regarding Clarence
Thomas.
Judge
Thomas
had
been
nominated
by
President Bush
to
be the next Associate Justice
of
the U.S. Supreme
Court.
During
the hearings a former subordinate,
Anita
Hill, came
forward
to
accuse Judge
Thomas
of
making
unwelcome sexual
advances
to
her several years before, when he was
Chair
of
the U.S.
Equal
Employment
Opportunity
Commission.
In
the ensuing highly
publicized controversy, the U.S. Senate voted
to
confirm the nomina-
tion
of
Thomas
to
the U.S. Supreme
Court,
where
he
continues to
serve.
30
The
public's
attention
has
returned
to
the issue
of
sexual harass-
ment
on
a regular basis ever since. Ensuing highlights included
the
Navy's
I 992
Tailhook
Scandal
(involving allegations
that
female
naval
personnel
attending
a
convention
at
a
Las
Vegas hotel were
forced
to
run
though
a
gauntlet
of
male personnel
and
subject
themselves
to
unwelcome touching)
and
the
I 994 sexual
harassment
lawsuit
of
Paula
Corbin
Jones
against President
Clinton
(based
on
events allegedly
happening
in I 99
I,
when
Mr.
Clinton
was
Governor
of
Arkansas
and
Ms.
Jones
was
an
Arkansas
state
employee).
That
lawsuit led in
turn
to
the
Monica
Lewinsky scandal,
and
to
the
impeachment
but
not
conviction
of
President
Clinton,
events
that
engulfed the U.S.
media
during
most
of
1998.
Two
notorious
cases
show
that
a
jury
in a sexual
harassment
case
can
be
indignant
not
only
at
an
employer's
failure to correct
sexual
harassment
in
the
workplace
but
also
at
an
employer's over-
reaction
to
claims
of
sexual
harassment.
In
California, a
harassed
female secretary sued
the
world's
largest firm for sexual
harassment.
The
jury
awarded
her
more
money
than
she
had
requested (over $7
million), largely because
the
employer
had
taken
no
action against
the
offending lawyer.
In
Wisconsin, the
employer
took
immediate
action
upon
the
complaint
of
a female employee against
her
male
supervisor
for
having
utilized sexually offensive remarks.
When
he
sued
after
he was
terminated,
the
jury
in
July
1997
awarded
him
$26.6 million,
although
the
award
was reversed
on
appeal.4
The
number
of
harassment
claims
made
in the last few years has
increased dramatically. Studies indicate
that
for a large U.S. company,
the average cost
per
sexual harassment case, win
or
lose,
is
$500,000.
These claims have involved
not
only sexual harassment
but
harassment
on
other
bases as well. Sexual harassment remains a fast-growing
area
of
employment discrimination complaints. While only
6,
I 27 federal
Equal
Employment
Opportunity
Commission
(EEOC)
charges
of
sexual
harassment
were filed against employers in 1990,5 complainants
have filed
an
annual
average
of
over 15,000
EEOC
sexual harassment
charges
during
the last decade.6
The
percentage
of
charges leading the
EEOC
to
find 'reasonable cause'
to
believe a violation
has
occurred has
also increased, from less
than
four
percent (on average) during the first
half
of
the 1990s to
about
nine percent since 2000.7
SOME
PECULIAR
ASPECTS
OF
AMERICAN
LITIGATION
No
General
Law
of
Unfair
Dismissal
Generally, a
non-union
employee in the
United
States
has
no
legal
remedy for
unfair
dismissal. This general rule
has
many
exceptions,
31
created
by federal
and
state
statutory
law
and
by state
common
law.
Examples
of
prohibited
reasons,
according
to
federal law,
would
be
discrimination against employees because they are
over
forty years
old,8 because
of
their gender,9 because
of
a
protected
disability
such as
AIDS,
10
or
because
of
their race.
11
There
would
be
no
federal
cause
of
action
if
an
employee were
terminated
for being gay
or
lesbian.
Harassment
is
actionable
irrespective
of
whether
the employee
has
suffered a formal adverse
employment
action.
There
would
be
no
federal cause
of
action
if
an
employee resigned because
of
a
supervisor's bullying, unless
the
bullying was related
to
a lawfully
protected
status
such as age, race,
or
sex.
The
United
States
Supreme
Court
has
made
it
clear
that
federal
anti-harassment
law was
not
meant
to
create a 'general civility
code'
.
12
The U.S. Judicial System
The
United
States judicial system, like
that
of
Canada
and
Australia,
has
both
federal
and
state
courts
and
respective administrative
agencies. Because sexual
harassment
usually will
amount
to
a
violation
of
both
federal
and
state
law, the
complainant
can
generally
choose either a state
or
federal
forum
for sexual
harassment.
The
federal
and
state
anti-discrimination
statutes
generally
mandate
an
initial filing
with
the relevant administrative agency as a
condition
precedent
to
litigation. These agencies have strict time limits
and
failure
to
file will preclude relief.
Paula
Jones, for example,
who
sued
President
Clinton
in 1994 for acts
he
allegedly
committed
when
he was
Governor
of
the
State
of
Arkansas,
in 1991, failed
to
file a timely administrative
charge
and
thus
could
not
sue
under
an
anti-discrimination statute.
13
It
is
possible a
complainant
might
have a viable claim
under
state law
but
not
federal law.
For
example, federal law covers only
those employers
who
have
15
or
more
employees, while some state
statutes
forbid discrimination
by
smaller employers.
14
The
EEOC
will investigate charges filed with it.
If
the
EEOC
takes
no
action,
it will issue
to
a
complainant
a right to sue letter.
15
Even
if
a
com-
plainant
elects
the
state
remedy
instead
of
a federal remedy, she
or
he
may
sue in federal
court
if
the
damage
alleged
is
over
$75,000
and
the
complainant
and
the
defendant
are
not
from
the
same
state.
16
Once federal jurisdiction
is
established, the
complainant
may
also allege, in her
complaint,
common
law causes
of
action
that
are
transactionally related
to
her
federal cause
of
action.
Paula
Jones, for example, sued
pursuant
to
a 19th
century
federal
statute,
but
also alleged jurisdiction
based
upon
the
fact
that
she
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