Sexual Harassment

Federal Sexual Harassment Law

Title VII of the Civil Rights Act of 1964 (amended in 1991) prohibits an employer from discriminating with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. With respect to sex, Title VII prohibits employers from exacting sexual contact in exchange for compensation or advancement (quid pro quo harassment) and from subjecting workers to abusive or hostile working environments because of their gender. In 1986, in Meritor Savings Bank v. Vinson, the U.S. Supreme Court upheld a liability finding against an employer who subjected a worker, because of her sex, to unwelcome misconduct that was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” After the Court heard Harris v. Forklift Systems, Inc. in 1993, hostile work environments required subjective (the victim actually experienced abusive conduct) and objective tests (a reasonable person would have found the conduct abusive). More recently, in its 2001 term, the Supreme Court affirmed in Clark County School District v. Breeden limits for the “severe or pervasive” test, holding that a comment and a chuckle were insufficient to define a hostile work environment. However, going the other way (increasing Title VII protection), the Court prohibited intragender harassment: “Nothing in Title VII necessarily bars a claim of discrimination ‘because of…sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are the same sex” in its holding in Oncale v. Sundowner Offshore Services, Inc.(1998). In recent times, the majority of cases brought to the Equal Employment Opportunity Commission and the courts are hostile work environment theories of liability. Psychologists find these cases most interesting to study as well.

To determine whether unwelcome social sexual conduct reaches the threshold of a hostile work environment, most courts adopt the reasonable person test, which according to Rabidue v. Osceola Refining Co.(1986) is “the perspective of a reasonable person's reaction to a similar environment under essentially like or similar circumstances.” Other courts emphasize differences in how men and women view social sexual conduct. Specifically, in Ellison v. Brady (1991), the Ninth Circuit held that “a female plaintiff states a prima facie case of hostile environment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” In Fuller v. City of Oakland (1995), the Ninth Circuit clarified this standard, holding that “whether the workplace is objectively hostile must be determined from the perspective of a reasonable person with the same fundamental characteristics” as those of the plaintiff. After the intragender holding in Oncale, the reasonable victim test looks to the background (e.g., gender, race, and age) of the complainant as well as the context of the conduct (e.g., persistence, status, and sexual orientation of the participants). Thus, the reasonable victim standard is a semisubjective test, which is concerned with whether a reasonable person with the same key attributes and in a situation similar to the complainant would find the offensive conduct sufficiently hostile to violate Title VII. While the issue of appropriate legal standard remains open today, after Harris there has been movement in most (but not all circuits) toward a more objective reasonable person test.

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