Equal Opportunities International

SEXUAL HARASSMENT IN GOVERNMENT

by Rick Bellows and Brian H. Kleiner Between 6 and 8 million Americans enter into a romance with a fellow employee each year, and one third of all relationships are now started in the office. With this volume of dating between co-workers, it is not surprising that employers have become aware of the risks of handling cases of sexual harassment. Many firms have instituted policies concerning the propriety of dating among co-workers. Perhaps surprisingly, about half of all office romances evolve into long lasting relationships or marriage (Lardner, 1998). Some employers have strict nodating rules, but many are willing to tolerate it as long as there are firm policies and grievance procedures available to deal with inappropriate behaviour. Sexual harassment and discrimination policies vary among government institutions, but most look to Title 29 of the Code of Federal Regulations, part 1604.11 Guidelines on discrimination because of sex, which deals specifically with sexual harassment. The Equal Employment Opportunity Commission enforces the laws pertaining to sexual harassment. There are formal complaint, investigation, and review phases to charges of sexual harassment; as well as statutes regarding liability and remedies to injured parties. Recently the Supreme Court of the United States has ruled on several cases with regard to the hostile work environment category of sexual harassment, and refined the requirements of employer liability. These decisions have made these laws more consistent, but there are several undecided issues concerning same-sex harassment, and the role private and government employers play in establishing and enforcing sound policies addressing sexual behaviour in the workplace. Background Sexual harassment is usually described as unwelcome sexual advances, unwelcome requests for sexual favours, and/or other unwelcome verbal or physical conduct of a sexual nature. Sexual harassment can take many forms. Some forms of sexual harassment can be annoying or irritating, while other forms can amount to sexual assault. There is an important difference between harassment of a sexual nature which occurs on the job and within the workplace, and sexual harassment which has nothing to do with the job or workplace. Whether a particular sexual advance is illegal sexual harassment usually depends on who is making the advance and how he or she is doing it. Sexual harassment which occurs on the job within the government workplace is the subject matter of this article. It is one form of illegal employment discrimination, and there are state and federal laws which emphatically prohibit such conduct and which subject the offending employer to civil sanctions. There are many areas of government employment, including: Federal departments, the civil service, and military institutions. State controlled workplaces such as school districts, state agencies, and governing districts concerning utilities; and executive as well as legislative functions. In general, government employment can be seen as every tax-payer supported organisation down to the city or municipality. This covers an incredibly large variety of workplaces; many with their own policies and procedures concerning employment law. Ten years ago a report on sexual harassment in the government discussed what Federal agencies and employees have done in response to sexual harassment and provides recommendations for additional corrective actions; and concluded: This current report finds that sexual harassment remains a widespread problem in the Federal workplace (USMB, 1988). Sexual harassment is a form of gender discrimination that violates Title VII of the Civil Rights Act of 1964. It is enforced by the Equal Employment Opportunity Commission, an office of the federal government. The Civil Rights Act of 1964 - Title VII Perhaps the most pertinent passages with regard to sexual discrimination follows: SEC. 2000e-2. [Section 703] (a) It shall be an unlawful employment practice for an employer -

1)

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, colour, religion, sex, or national origin; or

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(2)

to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals race, colour, religion, sex, or national origin.

For sexual discrimination to be covered under the Civil Rights Act, the victim must have been impacted or harmed in some way. This does not mean physical harm. The term disparate impact is used to define the ill effects of a hostile working environment, withheld opportunities, or retaliatory actions based on the harassment. Subsection (k) reads: (k) (1) (A) An unlawful employment practice based on disparate impact is established under this title only if-

(i)

a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, colour, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or the complaining party makes the demonstration described in sub-paragraph (c) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(ii)

Sexual Harassment Defined The Equal Employment Opportunity Commission has established guidelines defining sexual harassment as follows: Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

(1) (2) (3)

Submission to such conduct is made either explicitly a term or condition of employment, Submission to or rejection of such conduct by an individual is used as the basis of employment decisions affecting such individual, or Such conduct has the purpose or effect of unreasonably interfering with an individuals work performance or creating an intimidating, hostile, or offensive working environment (EEOC, 1990).

These guidelines have yielded two distinct legal theories of sexual harassment. The first of these is the quid pro quo (this for that) theory, which occurs when an employer or supervisor conditions tangible job benefits on acquiescence to unwelcome sexual conduct, or penalises an individual for refusing to participate in such conduct. Quid pro quo harassment would include such behaviours as a supervisor demanding sexual favours in exchange for promotion, favourable job assignments, or other job benefits. The second theory is a hostile working environment, which occurs when unwelcome conduct of a sexual nature unreasonably interferes with an individuals job performance or creates an intimidating, hostile, or offensive working environment. Such conduct may include: (Gladstone, 1991)

* * * * * * * *

Sexist or stereotypical remarks about a persons clothing, body, appearance or activities; harassing or abusive remarks regarding a persons sexual activities or gender; sexually-oriented jokes, stories, remarks or discussions; descriptions of sexual acts; posting sexually graphic pictures; deliberately touching, pinching, patting, or giving inappropriate looks to another person; pressure for dates or sexual activity; unwelcome telephone calls or letters of a sexual nature;

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demands for sexual favours.

There is no single situation that constitutes sexual harassment. Rather, sexual harassment can take one of many forms. The harassment may be direct or indirect, and could be used by a supervisor as a basis for employment decisions. The offender may be a supervisor, co-worker or subordinate. Management may also be responsible for the acts of outside contractors who sexually harass employees in the workplace. The harasser may be male or female, and even a consensual relationship between the harasser and the victim may involve sexual harassment. For example, if the victim agrees to sexual behaviour out of fear of retaliation, the conduct of the other party may still constitute sexual harassment despite the victims consent. The focus is on whether the conduct was unwelcome, not consensual. It is important to note that it is not how a person intended his or her actions to be taken, but rather how the actions are perceived (Sepler, 1997). In determining if conduct constitutes sexual harassment, courts have considered how a reasonable person would perceive such conduct. Even if the harasser does not view his or her conduct as objectionable, a reasonable person might. An isolated incident, or even a few such incidents, usually will not be considered sufficient to establish a hostile working environment. However, supervisors are usually encouraged to take corrective action when such isolated incidents occur, in order to ensure that future conduct does not rise to the level of a hostile working environment. Sexual advances from a supervisor or other person in authority are scrutinised far more closely than those of other co-workers because of the strong possibility of intimidation and abuse of power. Supervisors are in unique positions of power in the workplace. It is usually presumed that the employer has knowledge of any sexual harassment committed by supervisors, and so the employer is almost automatically responsible for their actions. Sexual advances by supervisors frequently involve the classic sex-for-jobs situation. The EEOC regulations state that sexual advances under these circumstances are unlawful if they are explicitly or implicitly a term or condition of an individuals employment (Barnett, 1989). In other words, if a woman must put up with these demands as part of her job, they may qualify as harassment. For example: Amale manager invites a woman on his staff to dinner. While eating he says suggestively: Lets go up to my apartment after dinner, have a drink and get comfortable. If you want, we can discuss the performance reports and the salary recommendations that I have to make next week. Although the manager makes no explicit reference to sex, it is strongly implied. By mentioning getting comfortable and salary recommendation in the same conversation, he creates a strong link between the two. This is quid pro quo sexual harassment. In a supervisor-subordinate relationship, very little conduct of a sexual nature is needed to support a finding of harassment. Even a relatively polite request for a date by an employer or supervisor can be the basis of a sexual harassment charge if it appears to be connected to future work assignments, promotions or raises. Unwelcome sexual advances or demands from a co-worker can also be the kind of conduct giving rise to a sexual harassment charge. However, since these cases do not involve a supervisor or someone in authority, the threat to the employee is not as direct. These cases require a greater look at all the surrounding circumstances. There is another important practical difference between a situation involving a co-worker and one involving a supervisor or someone in authority. As mentioned, with a supervisor or someone in authority, the company is presumed to know what is going on and therefore to be legally responsible for the situation. However, this presumption of knowledge does not apply to co-workers. Equal Employment Opportunity Commission - Procedures Employees who feel they have been the victim of sexual harassment at a federal agency, and have not been able to resolve the issue themselves; may contact an equal employment opportunity counsellor at the agency where the harassment took place. The agencys EEO counsellor should be contacted within 45 days of the alleged incident. The names and telephone numbers of EEO counsellors for government bureaus are supposed to be posted in each building where people work, and ordinarily counselling is completed within 30 days. During this time the counsellor talks to the parties involved and attempts to reach an informal resolution to the problem. If this is unsuccessful, the victim may then file a complaint with their agency. The agency must acknowledge or reject the

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complaint and if it does not dismiss it, the agency must, within 180 days, conduct a complete and fair investigation (EEOC, 1990). If the complaint is one that does not contain issues that are appealable to the Merit Systems Protection Board at the conclusion of the investigation, the party initiating the complaint may request either a hearing by an Equal Employment Opportunity Commission administrative judge or an immediate final decision by the employing agency. The administrative judge must process the request for a hearing, issue findings of fact and conclusions of law, and order an appropriate remedy within 180 days. This is the standard procedure for discrimination in the workplace, and sexual harassment cases in government are handled in this manner also. After the final decision of the agency, the complainant may appeal to the Commission within 30 days or may file in U.S. District Court within 90 days. Either party may request reconsideration by the Commission. The complainant may seek judicial review. If the complaint is on a matter that is appealable to the Merit Systems Protection Board (e.g., a mixed case such as a termination of a career employee), the complainant may appeal the final agency decision to the MSPB within 20 days of receipt or go to U.S. District Court within 30 days. The complainant may petition the EEOC for review of the MSPB decision concerning the claim of discrimination. The Equal Employment Opportunity Commission attempts to provide relief for every victim of discrimination. Possible remedies could include:

Posting a notice to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. It is illegal for any agency to take any retaliatory action against an employee for filing a complaint of sexual harassment. Corrective or preventive actions taken to cure or correct the source of the identified harassment. This could involve transfers of personnel, termination, or other actions in offices where a hostile work environment has been identified. Back pay and lost benefits. Under the Civil Rights Act of 1991, an individual may also be entitled to receive compensatory damages. A victim of quid pro quo sexual harassment whose career path has been adversely affected may also be instituted at a level where they would have been, had the harassment not occurred. Recovery of reasonable attorneys fees and costs (Gladstone, 1991).

There are generally monetary consequences to the government agency if there is an Administrative or Judicial Finding of Sexual Harassment. Where quid pro quo harassment which violates Title VII is established, the agency will be held strictly liable, and will compensate the victim and take steps as directed above. Where a hostile working environment is established, the agency will be held liable for harassment by a supervisor, coworker, or outside contractor only if the employer knew or had reason to know of the acts committed, and the employer failed to take prompt, effective action. There is no liability for hostile environment harassment when the employer did not know of, or had no reason to know of it; only if the agency had a policy against harassment, had a proper and effective complaint procedure, and communicated disapproval of harassment to employees. Recent Developments On June 26, 1998 the United States Supreme Court decided Faragher v. City of Boca Raton. This case significantly advanced the rights and remedies of sexually harassed employees. The opinions have clarified important aspects of the law of sexual harassment and have cleared up a confusing and non-uniform mass of lower court decisions. The case was decided by a convincing 7-2 vote, which indicates that future cases might be decided in a similar fashion. The case of Faragher v. Boca Raton involved the following facts. Faragher was a female lifeguard with the City of Boca Raton. She claimed that, while she was employed, her supervisors created a hostile work environment by repeatedly subjecting her and other female employees to uninvited and offensive touching, by making lewd remarks and by speaking of women in offensive terms. Faragher resigned as a result of this conduct. She filed a federal lawsuit against the city and the individual supervisors. She prevailed in a trial at the District Court level.

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The Eleventh Circuit Court of Appeals, however, reversed the ruling, determining that the city did not have effective notice and knowledge of the harassing acts of its employees and that the supervisors conduct. Since this conduct is outside the course and scope of their employment with the city, the city should not be held liable for the sexual harassment discrimination. The Supreme Court has now reversed the Eleventh Circuit, holding that an employer is subject to vicarious (imputed or automatic) liability to a sexually harassed employee for a hostile environment created by a supervisor with immediate authority over the employee. An employer might have a defence if it did not take any tangible employment action against the harassed employee, but the employer is not automatically in the clear simply because it did not take adverse action against the employee. An employer may claim, as defences, that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behaviour and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. In the Faragher case, the Supreme Court pointed out that the supervisors were granted virtually unchecked authority over their subordinates, and that the city had failed to disseminate its sexual harassment policy among the beach employees. It also noted that the city officials made no attempt to keep track of the conduct of the supervisors, and the citys policy regarding sexual harassment did not include a procedure whereby the harassers could be effectively bypassed in the making of any complaint. The resolution of this case changes the law with respect to sexual discrimination in the following respects:

The Court says that an employer is subject to vicarious liability to a victimised employee for an actionable hostile environment created by a supervisor with immediate, or successively higher authority over the employee. To raise a defence to such liability, the employer must show two things: 1. The employer exercised reasonable care to prevent and correct promptly any sexually harassing behaviour, and 2. The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Although proof that an employer has an anti-harassment policy with complaint procedure may not always be necessary as a matter of law, the need for a stated policy suitable to the particular employment circumstances is one of the things that will be addressed in looking at element 1 of the affirmative defence. If the supervisors harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment, no affirmative defence by the employer is available.

Gebser v. Lago Vista School District The Supreme Court decided on June 22, 1998 to deny damages to a high school student who failed to complain about sexual harassment by her teacher. This decision upholds the Fifth Circuits three part standard for sexual harassment liability. Title IX educational funds are tied to a contractual promise by recipients not to discriminate on the basis of sex. School districts will only be responsible for sexual harassment by employees when:

1. 2. 3.

A supervisor with power over the offending employee actually knows of the abuse, that supervisor has the authority to end it, and the supervisor fails to take corrective action

The male teacher in this case, Frank Waldrop, had been counselled about inappropriate remarks to high school students. He denied the misconduct, but apologised nevertheless. The principal who reprimanded Mr. Waldrop failed to report the complaints to the Superintendent/Title IX co-ordinator. Later, Mr. Waldrop began to direct more suggestive comments toward Gebser and initiated sexual contact at her home. The two had a sexual relationship for over a year until they were caught. Title IXs enforcement provisions require notice and an opportunity for voluntary compliance before federal funds will be lost. Although the Supreme Court has recognised the right of students to sue for discrimination under Title IX, the Court found that Congress did not intend unlimited damages against a funding recipient that is

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unaware of discrimination in its educational programmes. Leaving the student with a remaining state court lawsuit against the teacher based upon the students personal injury, Justice Sandra Day OConnor concluded, No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teachers conduct is reprehensible and undermines the basic purposes of the educational system. This case, however, is about whether the independent misconduct of a teacher is attributable to the school district that employs him under a specific federal statute designed primarily to prevent recipients of federal financial assistance from using the funds in a discriminatory manner (OConnor, 1998). This development confirms that the school district Title IX funds, which are specific incentives for schools who make a commitment not to engage in sexual discrimination, will not be subject to liability for the misdeeds of an individual teacher. In this situation the school district is not liable because it had a programme in place, but it was not used by the victim of the sexual harassment. Same-Sex Harassment Another issue which has garnered some attention lately is whether Title VII covers same-sex harassment. In McWilliams v. Fairfax County Board of Supervisors, the Fourth Circuit Court of Appeals, in a divided decision, held that Title VII does not protect a male from sexually offensive conduct by other male employees. Curiously, the court limited its decision to situations involving only heterosexual males. The majority suggested that Title VII might apply if either the victim or the harassers had been homosexuals. The issue of same-sex harassment is being examined by many courts, and likely will receive even greater attention in light of the split in the results. For example, in Ecklund v. Fuisz Technology, a Virginia federal district court recognised a same-sex harassment claim, reasoning that the statutory language is broad enough to cover such conduct. While it has not squarely addressed the issue of sexual orientation, the U.S. Supreme Court held on March 4, 1998, that a male oil rig worker could sue for sexual harassment after suffering sex-related taunts, threats and assaults from his male co-workers. The court looked not at the gender of the harassers, nor at their discriminatory motives, but focused on whether a reasonable person would find the behaviour severely hostile or abusive (Oncale v. Sundowner Offshore Services, Inc.). Because the law is developing so rapidly and divergently on this issue, employers should consult with legal counsel if it is confronted with such a situation. The entire subject of sexual harassment is now addressing cutting-edge issues. For example, claims of harassment by homosexuals, by females against males (EEOC v. Dominos Pizza Inc.), and subordinates against supervisors (Hanlon v. Chambers), are receiving judicial attention and more of such claims should be expected by employers. Sexual harassment of any nature may be illegal shortly, and these decisions could presage a fullyfledged extension of protection against harassment to gays and lesbians who are harassed because of their sexual preference. There may also be a change in the definitions of the two types of sexual harassment. In its most recent commentaries on sexual harassment, the U.S. Supreme Court acknowledged that the hostile environment and quid pro quo labels seemed more confusing than helpful. The important standard, the Court held, is whether both the employer and the harassed employee acted reasonably. An employer, for example, can boost a defence of reasonable behaviour by showing there was a strong policy against harassment in place. An employees case becomes considerably weaker if he or she did not take advantage of the workplace policy by reporting the harassment to another person or complaining to management (Barnett, 1989). High Profile Examples in Government Cases of sexual harassment in Government abound. The Navy Tailhook convention and Clarence Thomas confirmation hearings in 1991 both brought the subject to the attention of the public. Whether it is in the military, or within the halls of government offices; sexual issues and behaviour have become the material of print and network media as the interest in such scandals appear to be virtually insatiable. The recent sexual misconduct charges against Sergeant Major of the Army Gene McKinney dealt with 19 specific allegations of inappropriate behaviour with six female service members. Two of the charges were sexual assault, and the armed services specifically prohibit fraternisation between senior officers and subordinates. Senior enlisted men such as Sergeant McKinney are also subject to military procedures when issues of harassment and misconduct are brought to light. The military has its own code to administer justice, and the authority

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governing this case was the court-martial presided by the commanding general of the Military District of Washington, Major General Robert F. Foley. McKinney, was demoted to master sergeant after being convicted of an obstruction of justice charge March 13, 1998 by a military panel at the end of a six-week court-martial at Fort Belvoir, Va. McKinney retired in September 1998. In September 1995, Bob Packwood announced his resignation from the U.S. Senate after a unanimous vote by the Ethics Committee recommending he be expelled on charges of sexual misconduct. In this case more than two dozen women filed complaints of sexual harassment, and instances were corroborated by entries in his personal diary. When harassment occurs at such a high level in government, many times there are few channels to send complaints through, and the situation becomes a scandal in the public media. As with normal harassment claims, a victim always has the option of initiating a civil claim against the perpetrator. An employee who has experienced sexual harassment is under no legal obligation to use the channels set up by an office or administration to pursue a judgement through the legal system. This means, however, that one is prepared to hold the individual liable, and not the agency or employer. This was recently the case between President Bill Clinton and Paula Jones. Having no recourse through employment channels, a civil lawsuit was filed. This incident involved an isolated case where Ms. Jones contended that Mr. Clinton exposed himself to her. Mr. Clinton was not a direct supervisor, but the Governor of Arkansas, while Jones was a state employee. This allegation skirts the fringes of the requirements of sexual harassment in the minds of many because it did not entail a quid pro quo offer, nor does it appear to meet the requirements of creating a hostile work environment. If the event did occur, it is virtually unanimously condemned as boorish and inappropriate behaviour - but since it is alleged to only have happened the one time, it does not rise to the level of harassment. This has led to some interesting commentary on the nature of hostile work environment sexual harassment. Some have contended that even inappropriate touching or speech is does not necessarily constitute sexual harassment on the first occurrence. The recipient of the attention must communicate that they are not interested (and would the person please stop), whereupon any subsequent inappropriate behaviour could then be construed as sexual harassment. Conclusion Because of the potential for problems with dating co-workers, some even suggest the concept of preparing a love contract stating that in spite of all the risks you independently and collectively desire to undertake and pursue a mutually consensual social and amorous relationship (Lardner, 1998). This is suggested as a way to inform an employer of the situation, and thwart possible repercussions should a good relation turn bad. Recent legal decisions have upheld the responsibility of all employers, including government employers to establish and enforce policies that provide a working environment that is free from sexual harassment. While cultural workplace trends have increased the frequency of social and romantic behaviour among co-workers, strong guidelines must exist to ensure that when unwanted solicitations and hostile or intimidating situations arise; there is appropriate action taken to solve the problem. Federal agencies such as the Treasury Department have comprehensive support and resources available for the training of managers and supervisors in how to handle grievances. All government workplaces are covered under the rules and standards set forth by the EEOC, and many State and local governments have offices and staff to handle complaints when they arise. As these support functions are established to assist and guide employees, victims of sexual harassment and discrimination must take advantage of the procedures when handling a violation of their civil rights. Future court rulings are expected to decide whether the Civil Rights Act of 1964 applies to discrimination related to sexual orientation, and employers must be prepared to ensure a fair and non-threatening workplace for all Americans. References Barnett, Edith (1989) Sexual harassment: a continuing source of litigation in the workplace. Trial, v. 25, June 1989, pp.34-38. Equal Employment Opportunity Commission, (1990) Policy guidance on current issues of sexual harassment, EEOC Notice N-915-0503/19/90.

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Gladstone, Leslie (1991). Sexual harassment policy, rules applicable to congressional offices. Washington, Congressional Research Service, 1991. 4, pp.91-744. Lardner, James (1998),Cupids Cubicles, U.S. News & World Report, Volume 125, No 23, pp.44-54. OConnor, Sandra Day (1998) Gebser v. Lago Vista School District, Supreme Court opinion. Sepler, Fran (1997) Out of the shadows: Business confront an ugly reality Business week, Oct. 28, 1997 pp.30-35. U.S. Merit Systems Protection Board. Sexual harassment in the Federal Government: an update. Washington, The Board, 1988. p.68. RS88-6031.

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