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History of Harassment in the Workplace – Responsibilities of Employers and Employees

The History of Harassment in the Workplace: The Responsibilities of Employers and Employees According to the US Equal Employment Opportunity Commission, the year 2010 had the highest number of discrimination charges ever. Statistics that were released in early January 2011 from the Equal Opportunity Commission (EEOC) showed that the federal agency filed a record number of discrimination charges on behalf of United States employees. There was an overall increase of 7. 1 percent over 2009.

The increases were mostly due to a rise in retaliation charges, disability discrimination charges, and racial discrimination charges. Not only were these charges on the rise, but 2010 also seemed to have found courts increasingly willing to allow class action lawsuits against employers, with the most noted one being the Dukes vs. Wal-Mart case. The class action suit is seeking restitution for millions of both current and former Wal-Mart employees who may have suffered alleged gender discrimination.

Although the total numbers of all discrimination charges have steadily increased over the years, one specific type of charge has decreased. The charges of sexual harassment discrimination have dropped, however, there is surprising data showing that of the total, the percentage being reported by males has risen. In 2010, the total number of sexual harassment reported to the EEOC was 11, 717, compared to 2000, where it was 15, 836. Of the 11, 717 charges, 16. 4 percent were filed by males, whereas in 2000, only 13. 6 percent were filed by males.

These two sets of data tell us that US employers are doing a better job at preventing sexual harassment incidents, and/or have implemented more effective methods to resolve them. In addition, employers are educating more thoroughly on the topic, therefore it is better understood by all employees that sexual harassment is a non-gender based violation. It is what it is – a violation of the law. The most well-known sexual harassment claim to date is probably the Jenson vs. Eveleth Taconite Co. case, which most non-legal people would come to now as the case that inspired the movie, “North Country. ” However, as large a case this one was, in addition to a few others, it does not gain the attention that it probably should. The general public tends to attract to news in the media with names of people or companies they are familiar, such as the Wal-Mart one noted above. A sexual harassment case that gained a lot of attention was the alleged claims between Monica Lewinsky and former President Bill Clinton. It is large cases like this that grab the attention of most people.

Today, many Americans have a general idea what “discrimination” is and within that term, “sexual harassment,” but not many understand the history behind all of this. As with most things, there are usually a number of mistakes that are made before it is close to being perfect, if even. This applies to our laws as well. Back in the 1960’s, Americans were aware of “equal protection of the laws,” but what they didn’t know was, did the Constitution’s prohibition of denying equal protection mean that there had to be a ban on the use of race, gender, or ethnicity criteria in order to enable social justice and benefits?

Civil Rights Act of 1964 In 1964, what is known as Public Law 82-352 (78 Stat. 241) was passed by Congress. This bill became better known as the Civil Rights Act of 1964, and it was called for by President John F. Kennedy. It was indeed a landmark piece of legislation in the United States. Not only did it outlaw major forms of discrimination against blacks and women, it also brought an end to racial segregation. The bill in its entirety is lengthy; however, the main features of the Civil Rights Act of 1964 that pertain to equality include the following: Title I barred unequal application of voter registration requirements. It is important to note, however that the Act only required that voting rules and procedures be applied equally to all races. What it did not do was abolish the concept of voter “qualification,” as to say that it was acceptable that voting right was not automatic, but had to meet some standards beyond citizenship, such as the ability to read. * Title II prohibited state and municipal governments from denying access to public facilities on grounds of race, religion, gender, or ethnicity. Title IV encouraged the desegregation of public schools and authorized the US Attorney General to file suits to enforce the act. * Title V expanded the Civil Rights Commission which had been established earlier by the Civil Rights Act of 1957, the primary voting rights bill, with additional powers, rules, and procedures. * Title VI prevents discrimination by government agencies that receive federal funds. * Title VII prohibits discrimination by covered employers on the basis of race, color, religion, sex, or nationality.

The discrimination clause also extends to those with interracial association. Of these Acts, the one that received more scrutiny and was initially more of a controversy underpinned by the subtleties of personal relationship without harmony, was Title VII. Title VII The provisions of Title VII forbade discrimination due to sex and race in regards to hiring, promoting, and firing. In fact, the word “sex” was added at the last minute and according to West Encyclopedia of Law, it was done by Representative Howard W.

Smith, as an attempt to kill the bill in its entirety. Of course, Smith maintained that he merely amended the bill to continue his crusade in support of Alice Paul and the National Women’s Party. It was Title VII of the act that created the Equal Employment Opportunity Commission to implement the law. According to the EEOC website, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. A few years later, the Age Discrimination in Employment Act of 1967 was added.

Then in 1990, Title I of the Americans with Disabilities Act was also added. Although the Act states that “sex” is a basis for determining discrimination, the courts did not begin to hold that “sexual wrongdoing” aka “sexual harassment” is also prohibited within the act until the 1970’s. Barnes vs. Train, 1974 The first suit to be filed under Title VII of the Civil Rights Act of 1964 was in August of 1974, alleging sex discrimination. The case of Barnes v. Train looked into whether the Plaintiff had been sexually discriminated against.

The Plaintiff, a federal employee, alleged that she was discriminated against by the Defendant, her employer when she was reassigned and her former position terminated because she had refused to have sexual relations with her supervisor. The case resulted in a judgment summary for the Defendant. The court ruled that the alleged retaliatory actions of the Plaintiff’s supervisor taken due to the Plaintiff’s refusal of an “after hours affair” did not fall into the discriminatory conduct contemplated by the Act.

In their ruling, the court also determined that the substance of the Plaintiff’s complaint was that she was discriminated against because of she refused to agree to the sexual affair, and not because she was a woman. They did not find that the action taken by Plaintiff’s supervisor was evident of an arbitrary barrier to continued employment based on Plaintiff’s sex. Another factor was that the Plaintiff had initially based her initial complaint on race discrimination, and the element of sex discrimination was introduced later.

This ruling was then later on reversed by the US appeals court in 1977, finding that the circumstances proved to be sex discrimination, therefore, in violation of Title VII. The reversal came after a 1976 case, Williams v. Saxbe, in which a female employee was humiliated and terminated by her male supervisor because she refused his sexual advances, was found to be sex discrimination on grounds that it was an artificial barrier to employment placed before one gender and not the other. It was not until 1980 that the EEOC issued guidelines which interpreted the law forbidding sexual harassment, being it is a form of sex discrimination.

The following year, in 1981, the US court endorses, for the first time, the EEOC’s position stating that Title VII liability can indeed exist for sexual insults and sexual propositions, which create a “sexually hostile environment. ” This upholds even if the employee did not have any direct losses of tangible job benefits, as a result. As the 1980’s brought more suits, it appeared that the courts were looking more to hold employers liable for violations of Title VII. Specific to sexual discrimination, employers were liable if they forbade sexual harassment, yet did not take corrective actions when the employees filed a complaint.

The 1983 case of Katz v. Dole was exactly that. Katz vs. Dole, 1983 The case involved the termination of an employee by the Federal Aviation Administration for her alleged participation in an illegal strike. The employee filed claims against the Secretary of Transportation initiating a complaint that she had been sexually harassed, thereby subject to disparate and adverse personnel actions, which was in violation of Title VII, due to gender discrimination. The outcome resulted in the court ruling that the employee’s supervisory personnel manifested approval of harassment and thus, the employee suffered sustained and nontrivial harassment.

The court based its ruling on the fact that although the employer had a sexual harassment policy in place, it was deemed ineffective. There were a few other sexual discrimination cases following 1983, but one in 1986 was a landmarked case because the case was heard by the US Supreme Court, as it was their very first sexual harassment case. Meritor Savings Banks vs. Vinson, 1986 In its first address of a sexual harassment case, the US Supreme Court ruled that a woman employee who allegedly had sex with her boss numerous times in fear that she would lose her job if she refused, would be able to sue for exual harassment. The ruling was based on the finding that the employee did in fact engage in voluntary sexual relations with her boss, those engagements were unwelcome, therefore in violation since the issue was not based on the employee’s conduct, but more so the boss’s conduct. As part of the ruling, the US Supreme Courted emphasized that an employer can be held liable for sexual harassment which is committed by upper management toward subordinates IF the harassment is known OR should have known and did not act to correct it.

In addition to the Meritor v. Vinson case, there were many more suits that were upheld by the courts based on different rulings. The noted cases lead us up to the 20th century. Other Notable Cases and/or Events * 1985, the US appeals court rules that physical violence can be sexual harassment, even if the act is not sexual in nature, as long as the conduct is unwelcome and based on the gender of the victim. * 1988, the US appeals court rules that sexual harassment does not have to be exactly sexual in nature, as long as it is a gender-based harassment.

Hall vs. Gus Construction Co. * 1990, the EEOC issued a policy statement stating that sexual favoritism can be sexual harassment, if the advances are unwelcome OR the favoritism has become an unspoken condition of employment because it was already spread too wide. * 1991, an environment found to be sexually hostile would be in violation if there is a small minority of women making up the total workforce; sexually hostile being crude language, pornography, sexual graffiti, etc. Robinson vs. Jacksonville Shipyards. 1991, the well-known conduct hearings by the Senate Judiciary Committee relating to the allegations brought forth by Anita Hill toward Judge Clarence Thomas, in which Hill alleged that she was sexually harassed by Thomas, however did not report it and continued seeing Thomas after she changed jobs. The result still place Thomas in a seat on the court, but the hearings brought the issues of workplace sexual harassment to light and many debates were sparked over just what IS sexual harassment and how it should be addressed. 1991, becoming law was the Civil Rights Act of 1991, which provided for jury trials, and for increased damages in Title VII cases. * 1993, this year marked the first successful sexual harassment lawsuit by a class of 100 women, in which the court held a mining company in Minnesota liable. Jensen vs. Eveleth Taconite Co. This case was made into the well-known movie, “North Country. ” * 1994, the Supreme Court holds that provisions of the Civil Rights Act of 1991 (jury trials and damages) do not apply to those cases that arose before the effect of said law. 1995, the Congressional Accountability Act holds Congress in compliance with the very workplace standards it imposed on other employers and established a compliance office to enforce those standards. * 1996, a federal court upholds an employer’s dismissal of a manager who had been fired for disregarding his boss’s direct order to not discuss an ongoing sexual harassment investigation with others in the company, ruling that the manager had engaged in activity which was protected by the law.

Morris vs. Boston Edison Co. * 1998, the Supreme Court holds that men, as well as women, can bring about sexual harassment claims and that Title VII also applies to same-sex harassment. Onacle vs. Sundowner Offshore Services. * 2000, a case marked the need to show gender bias, when a US appeals court ruled that a bisexual harasser does not act on the basis of gender, even though the supervisor had solicited sexual relations from both a husband and wife. Holman vs. Indiana.

With the number of sexual harassment cases being reported by the EEOC on the rise, one may wonder just how many of these cases are legitimate claims and how many may be abusing the system, more specifically, the Title VII Act. The steadily increasing number of sexual harassment cases brings about the topic of employer obligation. Just how much responsibility does an employer have in relation to prohibiting sexual harassment in the workplace? What are employers responsible for, to what degree, and what obligations do employers have to their employees in protecting them against sexual harassment? Employer Responsibilities to Employers

Re: Discrimination and Sexual Harassment If an employer has more than 15 employees and the business affects interstate commerce, the business is covered by Title VII of the Civil Rights Act of 1964, therefore, employers must take care in due diligence to ensure their employees safety from sexual discrimination. Employers are made aware, or should be aware, that Title VII strictly prohibits sexual harassment, and other discriminatory acts. Sexual harassment is defined as any type of sexual behavior that is unwelcome and/or inappropriate in the work place, regardless of whether it is public, private, or educational. Sexual harassment includes: Verbal behavior, such as derogatory comments, including jokes, or other requests for sexual acts and sexual advances. * Visual conduct, such as putting up derogatory pictures, drawings, written material, etc. or allowing them to remain. * Physical conduct, such as unwelcome touching, etc. * Gender-based animosity and/or a sexually hostile work environment. Title VII classifies sexual harassment claims into two categories: * “Quid Pro Quo” is defined as sexual harassment which takes place when someone with authority, such as a supervisor or manager, requests/demands sexual favors in exchange for job advancements, hiring, or security. “Hostile Work Environment” is verbal or physical conduct of a sexual nature, such as sexual favors and/or sexual advances when the purpose behind the conduct creates unreasonable interference with an individual’s work performance or creates a work environment that is hostile or intimidating. These two classifications contain detailed information within the guidelines established by the EEOC. An employer first has the responsibility to know and understand the rules and a procedure governing all types of harassment as it is listed under Title VII.

The EEOC government website has many policies that address the specific types of work place harassment. The main responsibilities that employers have to employees and/or individuals, as defined by the EEOC (www. eeoc. gov), are: * Understand what employer’s responsibility of harassment entails. Per the EEOC * An employer is always responsible for harassment by a supervisor that culminated in a tangible employment action. If the harassment did not lead to a tangible employment action, the employer is liable unless it proves that: 1) it exercised reasonable care to prevent and promptly correct any harassment AND * 2) the employee unreasonably failed to complain to management or to avoid harm otherwise * Adopt and enforce a clear policy on sexual harassment in the work place. Per the EEOC: * An employer’s anti-harassment policy should make clear that the employer will not tolerate harassment based on race, sex, religion, national origin, age, disability, or genetic information, or harassment based on opposition to discrimination or participation in complaint proceedings.

The policy should also state that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation. * Educate all employees, including those in authoritarian positions, about the different types of sexual harassments, the forms they could take, as well as the affects of sexual harassment on individuals. * Educate employees on the proper elements of a complaint procedure. As listed by the EEOC: * The employer should encourage employees to report harassment to management before it becomes severe or pervasive. The employer should designate more than one individual to take complaints, and should ensure that these individuals are in accessible locations. The employer also should instruct all of its supervisors to report complaints of harassment to appropriate officials. * The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible. * Implement a clear and concise plan for addressing sexual harassment incidents and/or claims and ensure that all employees are aware of the actions they need to take as well as the actions the employers will take.

Per the EEOC, this includes: * An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation. * The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information. The Guidance provides examples of specific questions that may be appropriate to ask. * Before completing the investigation, the employer should take steps to make sure that harassment does not continue.

If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. * Have a clear plan to handle correct harassment, if it has been determined so. The EEOC states: If an employer determines that harassment occurred, it should take immediate measures to stop the harassment and ensure that it does not recur. Disciplinary measures should be proportional to the seriousness of the offense. The employer also should correct the effects of the harassment by, for example, restoring leave taken because of the harassment and expunging negative evaluations in the employee’s personnel file that arose from the harassment. * Be specific in the sexual harassment policy and the disciplinary policy there should not be any conflicts between the two policies. Employers that establish and follow these procedures and the EEOC policies will have a lesser chance of harassment incidents occurring in their work place. As mentioned early, the courts are increasingly ruling that employers are liable for the discrimination and harassment charges made by their employees. The majority of these rulings are not due to the incident itself, but more to the lack of education and preventative measures taken. Employers are not single-handedly responsible for harassment in the workplace.

Employees also hold a legal responsible and that is: * The employee must fully understand the employers’ harassment policy, as well as the process to report a claim. * The employee must take all reasonable steps to avoid the harassment, which will normally be defined in the employer’s complain procedure. * If it has been determined that a harassment incident has occurred, employees/individuals have 180 days to file a charge. Federal employees have 45 days to contact an EEO Counselor. Discrimination and harassment in the workplace, sexual in nature or not, is illegal.

The better educated both employers and employees are in, not only the act Title VII, but also the Civil Rights Act of 1964, the lesser the incidents they will encounter. It is a non-gender based illegal act with negative effects on both parties. By working together, it will help with prevention. Sources Ellison, Jesse. “Shattering Glass Ceilings. ” Newsweek. June 15, 2010. Gesaman, Krista. “Abuse of Power. ” Newsweek. January 13, 2010. Lexus Nexus Academic Government Publications, Federal and State Cases BARNES v. TRAIN. No. 1828-73. United States District Court for the District of Columbia. 1974 U. S. Dist.

LEXIS 7212; 13 Fair Empl. Prac. Cas. (BNA) 123 Deborah Ann Katz, Appellant, v. Elizabeth Dole, Secretary of Transportation, Appellee, American Civil Liberties Union of Virginia Amicus Curiae. No. 82-1379. UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. 709 F. 2d 251; 1983 U. S. App. LEXIS 27165; 31 Fair Empl. Prac. Cas. (BNA) 1521; 32 Empl. Prac. Dec. (CCH) P33, 639 Case Studies in Sexual Harassment. http://www. twc. state. tx. us/news/efte/case_studies_in_sexual_harassment. html Equal Rights Advocate. http://www. equalrights. org/publications/kyr/shwork. asp Equal Employment Opportunity Commission. Statistics. ttp://www. eeoc. gov/eeoc/statistics/enforcement/sexual_harassment. cfm Equal Employment Opportunity Commission. Harassment Facts. http://www. eeoc. gov/policy/docs/harassment-facts. html National Archives and Records Administration. General Records of the U. S. Government. Record Group 11. ARC Identifier: 299891. http://www. archives. gov/education/lessons/civil-rights-act/ Preventing Sexual Harassment, a Fact Sheet for Employees. http://www. dotcr. ost. dot. gov/Documents/complaint/Preventing_Sexual_Harassment. htm Wikipedia. Civil Rights Act of 1964. http://en. wikipedia. org/wiki/Civil_Rights_Act_of_1964

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