Definition of Sexual Harassment
There are plethora of approaches to defining sexual harassment; the legal perspective, socio-psychological perspective, and the public or lay perspective. In line with the legal perspective, a lot of definitions have been developed in accordance to historical writings (Barling & Cooper, 2008). In 1980, the US Equal Employment Opportunity Commission developed the following definition; sexual harassment encompasses conducts such as unwelcoming sexual approaches inclusive of coded physical conducts of any sexual nature, which affects an individual employment, and unreasonably destructing an individual’s work performance or generating an intimidating and offensive work environment (Barling & Cooper, 2008).
Difference between Sexual Harassment and Gender Discrimination
The principal difference is that sexual harassment constitutes hostile acts aimed at either sexual intimacy or degradation and alienation of the victim, ascribed to the urge of fulfilling personal desires or interests (Barling & Cooper, 2008). On the other hand, gender discrimination entails, gender stereotyping, which includes using derogatory language towards women, and using women as surrogate wives to; take minutes in a meeting, serve coffee, and taking lunch orders (Howard, 2007). Also, having women employees concentrated in secretarial and assistant positions, with few women in upper-management positions (Howard, 2007).
‘Quid pro quo’ Sexual Harassment
Quid pro quo is a Latin term, which means getting something in exchange for something else, thus, quid pro quo sexual harassment occurs when concrete employment benefits are conditioned upon sexual favors (Craig, 2009). It is common in employment situations, especially between the senior members in management and employees, and it is accompanied with the act of exercising authority to extract sexual favors (Craig, 2009).
Hostile Environment Sexual Harassment
This is an abusive and hostile environment based on sex, created by either supervisors or fellow employees, to the extent that the fundamental conditions of the employee’s working rights and environment are manipulated (Craig, 2009). This can be depicted through a single or a series of unwanted sexual attention that creates an environment full of intimidation, hostility and offence (Howard, 2007).
Factors That Determine Whether a Behavior is Sexual Harassment
There are various core factors that can be used in determining whether behavior is a sexual harassment, and they constitute; the frequency of the act, in that, if there is significant frequency of occurrence of the behavior, or the behavior is repeated countable times (Zunker, 2011). Awareness of the course of action or what has happened also contributes to the factors that determine whether behavior is sexual harassment, since, if the victim complies to the demand of the harasser at will, without any form of pressure, the behavior is not sexual harassment (Zunker, 2011). However, if the victim indulges in the act due to some form of pressure, then the behavior can be categorized as sexual harassment (Zunker, 2011). In addition, reasonable woman standards can also be used to determine whether behavior is sexual harassment, in that, if a reasonable woman considers a behavior offensive, even when the man considers the behavior inoffensive, then the court would rule that there is an occurrence of sexual harassment, (Zunker, 2011). Lastly, other factors may entail extreme judgment of behavior, and the involvement of the perpetrator as a direct supervisor of the victim (Zunker, 2011).
Standard by which “Unreasonable” Behavior is Determined
Standard used in determining unreasonable behavior, may include a vital facet such as whether the behavior was voluntary or involuntary on an applicant, taking into consideration personality, character and disposition of the applicant. These aspects aid in defining and clarifying the standards applied in determining unreasonable behaviors (Craig, 2009).
Severe or Pervasive Situation
Barling and Cooper (2008), assert that a situation can be considered severe or pervasive, when there is a lot of disruption, high levels of upsetting, enduring and frequency, which amounts to a decrease of all the attempts of ignoring the situation, and a consequent increase in the efforts to avoid, confront, report and seek social support concerning the situation.
Policy against Sexual Harassment
It is utterly indispensable that every organization possesses a valid policy against sexual harassment, so as to protect employees from sexual harassment and ensure that the actions of all employees or workers are covered significantly (Howard, 2007).
Burlington Industries, Inc. v Ellerth 524 US 742 (1998)
Slowik, a middle-leveled manger, allegedly subjected one of his female subordinates (Ellerth) to constant sexual harassment. The manager subjected the employee to loutish, loathsome remarks and gestures (Legal Information Institute, n. d). Further, he also made comments that depicted threats to deter her from getting job benefits, purportedly three times. In light with this, she turned down all the advances and at some point received promotion. Despite having a clear and mental apprehension on company policy against any forms of sexual harassment, she never reported any incident of abuse. However, after quitting her job, she filed suit, arrogating that she was discharged on the violation to Title VII, which prohibits gender discrimination (Legal Information Institute, n. d).
Issue in the case
This case addressed the role of compliance programs in determining liability for sexual harassment committed by supervisors, regardless of the nature of the harassment is being committed (Legal Information Institute, n. d). Besides, the court was to review and clarify whether the alleged constructive discharge due to quid pro quo sexual harassment was justified, since she got the promotion, and she never reported any related incident to the authorities of the company, using Burlington’s sexual harassment internal complaint procedure (Legal Information Institute, n. d). In conjunction to this, no threats were fulfilled by the manager, thence making the whole issue skeptical (Legal Information Institute, n. d).
The Decision of the Court
At first, the court disregarded Ellerth’s claim on the constructive discharge, attributing to failure of reporting the allegations to the company officials, despite full awareness of Burlington’s policy against sexual harassment (Legal Information Institute, n. d). Similarly, the court also noted that Ellerth had suffered no negative job consequences. However, the seventh circuit Court of Appeals en banc, reversed the lower court decision, but with eight separate opinions, based on divergent rationales, which raised two vital questions; if Ellerth’s claim could be classified as quid pro quo harassment, and if the employer in a similar situation could be held to vicarious liability standards (Legal Information Institute, n. d). Hence, the Court made a ruling that the employer was to be fully liable of any form of sexual harassment in his organization, with or without the knowledge of the act or even when the victim suffers no inauspicious job sequence (Legal Information Institute, n. d).
I agree with the court’s decision since the employers should be in the fore front, in having a valid policy on sexual harassment, with severe repercussions to any employee who violates them. Howard (2007) also affirms this, by elaborating on the urge of training employees on how to deal with sexual harassment and the detailed procedure that can be followed in reporting any act of violation. Therefore, it becomes utterly coherent for employers to become liable for any act of sexual harassment within his or her organization.
Barling, J. & Cooper, L. C. (Eds.). (2008). The SAGE Handbook of Organizational Behavior: Micro approaches. California, CA: SAGE Publications Inc.
Craig, E. C. (2009). Basic Labor and Employment Law for Paralegals. New York, NY: Aspen Publishers.
Howard, G. L. (2007). The Sexual Harassment Handbook. Pompton Plains, NJ: Career Press.
Legal Information Institute. (n. d). Burlington Industries, Inc. v Ellerth (97-569) 123 F. 3d 490, Affirmed. Web.
Zunker, G. V. (2011). Career Counseling: A Holistic Approach (8th Ed.). Belmont, CA: Cengage Learning.
A Good Sexual Harassment Policy
- Sexual harassment is illegal and unacceptable behavior, and neither managers nor employees shall in any case engage in conduct deemed to sexual harassment.
(This is to create awareness on the illegality of sexual harassment).
- Sexual harassment behaviors encompass; unwelcoming sexual advances, request for any favors pertaining to sexual desires, and physical or coded conducts of sexual nature.
(This aid in emphasizing the forms of sexual harassment conducts).
- Employees are reminded that respect and civil behavior towards fellow employees, subordinates, and managers is expected at all times.
(This section helps in promoting a coherent society, full of civilization, and respect).
- Serious repercussions or consequences will be bestowed on any individual upon the violation of the policy.
(This section emphasizes on the penalties that accrue as a result of policy violation).