Sexual Harassment

Defining Sexual Harassment

Emerging from the groundbreaking work of legal scholar Catherine MacKinnon, sexual harassment in the United States is viewed as a form of sex discrimination. Legally, two types of behavior comprise sexual harassment: quid pro quo harassment and hostile environment harassment. Quid pro quo harassment involves sexual threats or bribery that are made a condition of employment or used as the basis for employment decisions. Established by the 1980 Equal Employment Opportunity Commission and the 1986 U.S. Supreme Court decision in Meritor v. Vinson, hostile environment harassment captures those behaviors, such as sexual jokes, comments, and touching, that interfere with an individual's ability to do her or his job or create an “intimidating, hostile or offensive working environment.” This includes forms of gender harassment, such as gender-based hazing and put-downs. To be considered hostile environment harassment, it must be established that there was a single serious incident or a pattern of usually less severe behaviors occurring over time. Since the 1993 U.S. Supreme Court decision in Harris v. Forklift, the law considers whether a “reasonable person” would find the behaviors unwelcome as well as the “subjective” experience of the person experiencing the behaviors. Some lower court decisions acknowledge that sexual harassment is a gendered phenomenon, with women more likely to experience harassment and to be adversely affected by it. These courts have adopted a “reasonable woman” standard when evaluating whether harassment occurred.

On the surface, the legal definition of sexual harassment appears straightforward, with its focus on men using their power over women to satisfy their sexual desires. Yet, this focus has limited what can be claimed as sexual harassment. Critics identify several shortcomings in the current legal framework of sexual harassment. First, the legal definition of sexual harassment overemphasizes (heterosexual) sexual acts and sexual desire at the expense of gender-based harassment. Research shows that most sexual harassment that occurs is hostile environment harassment that involves the denigration of women (and men). [Page 845]This means that at its core, sexual harassment is often not about sexual desire but about letting women (and men) know they are not welcome in certain workplaces and that they are not respected members of the work group. There is some concern that the current legal definition of sexual harassment may end up only ridding the workplace of such “nonthreatening” sexual behaviors as flirting and joking while overlooking how gendered hostility can exclude workers from the most desirable jobs in a workplace and lead to sex segregation and inequality at work.

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