The Unexpected World of Sexual Harassment

We have all heard about sexual harassment, and most employers have a sexual harassment policy in place. Though sexual harassment is not new experientially, it is relatively new legally. US courts ruled on their first sexual harassment case (under Title VII of the Civil Rights Act of 1964) in 1976, and sexual harassment was not given name or meaning in Canada until 1978, with the first case being in 1980.

Facts & Numbers

Aside from the cost to victims, the cost to employers includes a poisoned work environment (which results in low morale, stress-related absences/inefficiencies, and high staff turnover), and, potentially, court costs, wage compensations, and punitive damages.

Over the past 10 years in the US, the number of cases and payouts have increased dramatically. Data from the US Equal Employment Opportunity Commission (EEOC) shows that in 2002 there were 14,396 charges filed (14.5% filed by males) and 15,792 cases resolved (some cases had been pending from the previous year). Of these 15,792 cases, 1,692 were resolved by settlements with monetary benefits, which totaled US$50.3 million. In comparison, of the 1,029 settlements in 1992, the monetary payout was only US$12.7 million.

Statistics Canada (Violence Against Women Survey, 1993) reports that 87% of women have experienced sexual harassment. An estimate from 2000 by the National Forum on Health gave a wide-ranging (thus, not particularly useful) estimate that 42% to 80% of Canadian women experience workplace sexual harassment. (In Canada, workplace sexual harassment complaints are addressed through provincial/territorial human rights commissions, but in Saskatchewan and Quebec, sexual harassment is also handled as an occupational health and safety issue.)

There are two types of sexual harassment. The most blatant form is known by the Latin term quid pro quo (this for that), wherein a person of authority demands sexual favors as a condition of getting or keeping a job or getting a benefit or promotion. The second type involves the creation of a hostile work environment by means of unwelcome and inappropriate sexually based behavior, e.g., suggestive remarks, sexual jokes, verbal abuse, display of suggestive images, leering or whistling, unwanted physical contact or assault.

Some Cases & Issues

A person can compliment another's appearance without harassing them. Mutual flirtation and willing sexual activity are not harassment. Of course, anything involving the law involves technicalities and quirks.

For example, what if there are many willing people? The EEOC takes the view that if a boss has several lovers at the workplace who receive preferential treatment, which is common knowledge, the implication is that one must have a relationship with the boss to get ahead, so the work environment is considered hostile.

Yet, in somewhat similar circumstances, a non-hostile environment may exist. In the case of Holman versus State of Indiana (2000), a married couple sued their foreman for sexual harassment. The foreman sexually harassed Mrs. Holman by touching her and requesting sexual favors and sexually harassed Mr. Holman by putting him in a headlock and requesting sexual favors. The courts decided that (under Title VII, which addresses discrimination issues), since the behavior was inflicted on both sexes, the foreman was not discriminating based on sex.

A hostile work environment has effect beyond the direct victim. In Jackson versus Quanex Corp (1999), it was decided that even when a supervisor's (alleged) sexual comments were not directed at the plaintiff, they are relevant in determining the existence of a hostile work environment for legal purposes.

And there are issues of prevalence, as addressed in the article "What to Do About Sexual Harassment," by Toronto employment lawyer Norman Grosman. Quoting an Ontario Board of Inquiry, Grosman writes:

There are some employers (and employees) who simply are very crude and who speak in bad taste … discussing in the workplace their relationships with the opposite sex, or in telling sex 'jokes.' It is not the intent, or effect, of the Human Rights Code, or the function of a Board of Inquiry, to pass judgment upon such persons. It is only 'sexual harassment' that is unlawful conduct.

One joke in poor taste won't have you tarred and feathered. Moreover, in Burnett versus Tyco Corp (2000), three (alleged) incidents over six months did not constitute a hostile workplace. And in Hocevar versus Purdue Frederick Co (2000), a woman was not allowed to claim a sexually hostile work environment based on a supervisor's constant use of offensive language, because she used the same type of language.

It's Not Just Male on Female Harassment

Let's close with a reminder that sexual harassment, though usually male on female, can also be female on male or on same sex.

In our first example Casiano versus AT&T Corp (2000), the plaintiff lost twice. The male plaintiff said that his female supervisor gave him a satisfactory evaluation only, because he wouldn't submit to her sexual advances, which resulted in his being ineligible for a management program. However, the district court dismissed the case because he did not take advantage of the employer's sexual harassment policy. Further, the circuit court later said that the satisfactory evaluation was not harmful because another supervisor gave the same evaluation.

In Carey versus Mount Desert Island Hospital (2000), a male CFO claimed he was terminated because the hospital management committee (all women) had an anti-male bias. His claim was based on remarks made by some of the women – one comment being that we live in a patriarchal society where men shirk child-rearing duties. This statement may be true, but, nonetheless, the CFO got a verdict of US$700,000.

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