Guys were encouraged to get as drunk as they could, and do whatever they could to the women. If they felt like grabbing a woman by the boob or the ass, that was okay. They would use their power and authority to make you think you didn't have a job if you didn't go along.
—A former pharmaceutical company sales representative
Sexual harassment is hardly a new phenomenon. In the early days of Hollywood, it was generally accepted that many actresses auditioned for roles on the "casting couch," finding their way into films by acquiescing to the sexual demands of directors. The businessman chasing his secretary around the desk has long been a common theme of cartoonists. Until the 1970s, remarks laced with sexual innuendo were still considered acceptable in the workplace. But as women became more prominent in the work force, behavior that had been condoned and even encouraged was redefined as sexual harassment.
Definitions
Sexual harassment is a form of sexual discrimination prohibited under Title VII of the Civil Rights Act of 1964. According to the U.S. Department of Justice, sexual harassment is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct that enters into employment decisions and/or conduct that unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment." Despite the legal definition, sexual harassment allegations remain difficult to prove and hard to refute.
There are two forms of harassment: quid pro quo, the Latin term meaning "this for that," and hostile-workenvironment harassment. Quid pro quo harassment occurs when an employee is pressured to choose between submitting to sexual advances or losing a job benefit, such as a promotion, raise, or the job itself. Hostile-work-environment harassment is unwelcome conduct that is so severe that it creates an intimidating or offensive work environment. For example, an employee who tells sexually explicit jokes that offend coworkers could be accused of creating a hostile work environment.
In 1986 the landmark U.S. Supreme Court case Meritor Savings Bank v. Vinson established the legal standard of a hostile work environment. The case originated when Michelle Vinson sued her employer, claiming her supervisor had harassed her constantly and raped her. A lower court ruled against Vinson, but the Supreme Court reversed the decision, focusing on the hostile environment clause of the law, which, the court found, "affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."
Cases
The Equal Employment Opportunity Commission is the federal agency responsible for investigating and resolving charges of sexual harassment. The commission received 6,127 sexual harassment cases in 1990. By 1997 that number reached its highest level, 15,889. The number dropped slightly over the subsequent four years, but had increased again to 15,792 in 2002. While the number of cases has remained about the same, the amount of money awarded to sexual harassment victims has grown steadily, from a total of $7.1 million in awards in 1990 to $50.3 million in 2002. Changes in the Civil Rights Act of 1991 gave people suing for sexual harassment the right to jury trials and permission to sue for compensatory and punitive damages, opening the door for larger monetary awards. Some critics charge that the huge awards are excessive and disproportionate to the offenses.
When considering the merits of cases, courts apply a variety of tests to distinguish merely rude behavior from true instances of harassment. They ask whether a given gesture, comment, or action was unwelcome and of a sexual nature. If it meets these criteria, courts then examine the severity and prevalence of the behavior. Generally, the more extreme the behavior, the less frequently it needs to have occurred to be deemed sexual harassment.
Some experts predicted that sexual harassment would be eliminated, or at least sharply reduced, as women became more accepted in the workplace. Instead, 1998 saw four major sexual harassment cases in the U.S. Supreme Court, three of which were brought under Title VII of the Civil Rights Act of 1964. These three cases clarified employer liability for sexual harassment in the workplace. The first involved Joseph Oncale, who was sexually assaulted by his coworkers and a supervisor on an oil rig off the coast of Louisiana. He filed a federal lawsuit alleging sexual harassment. Oncale lost to the lower court because he and his coworkers were male. But according to the unanimous ruling by the Supreme Court in Oncale v. Sundowner Offshore Services, same-sex sexual harassment constitutes legal discrimination.
In Faragher v. City of Boca Raton, Beth Faragher, who was employed for five years as a lifeguard for Boca Raton, Florida, alleged she endured repeated incidences of touching, sexual gestures, and sexual comments from two male bosses. Because Faragher feared retaliation, she did not report the abuse until after leaving her job, when she filed a sexual harassment suit against the city. The city responded that because it was never made aware of the events, it had no liability for the alleged actions of the supervisors. Although the city had a sexual harassment policy, it had not distributed that policy to Faragher or her department. The Supreme Court made it clear that any large employer must establish, distribute, and enforce a sexual harassment policy.
In Burlington Industries v. Ellerth, the court considered the case of Kimberly Ellerth, who claimed she was subjected to constant sexual harassment by a manager. Burlington Industries argued that Ellerth was not financially burdened by the harassment and that as a result, Burlington was not liable. The Supreme Court held that an employer could be liable when a supervisor causes a hostile work environment, even when the employee suffers no tangible job consequences and the employer is unaware of the offensive conduct. The manager's numerous alleged threats were found to constitute severe or pervasive conduct.
In both the Faragher and Ellerth cases, the Supreme Court made it clear that a worker who is harassed has a duty to report it. Employers must have a sexual harassment policy that is compliant with the law, disseminate the policy so that all employees know about it and know how to use it, ensure that employees have effective avenues to file complaints, respond promptly and effectively to complaints, and enforce the policy with appropriate actions.
The fourth case, Gebser v. Lago Vista Independent School District, was brought under Title IX of the Education Amendments Act of 1972. It concerned a school district's liability for a teacher's sexual involvement with a fourteen-year-old student. Alida Gebser, a student in the Lago Vista, Texas, school district, claimed her relationship with the teacher was consensual, but she also said she was afraid to tell anyone about it, fearing she would be barred from the advanced-level courses the teacher taught. The teacher pleaded guilty to charges of statutory rape, and Gebser filed a civil suit against the school district. The Supreme Court ruled that a school district could not be held liable because the student had not told a supervisor, stating that a student must prove a school district acted with "deliberate indifference" to a complaint.
Sexual Harassment in the Military
Sexual harassment in the military captured the public's attention in 1991 when eighty-three female officers claimed they were abused at a convention of naval and marine pilots, which created an uproar that became known as the Tailhook Scandal. Of about 140 charges leveled at officers as a result, not one case made it to trial. Less than half of the accused men "went to the mast," an internal disciplinary procedure that levied fines and career penalties.
In November 1996 four drill instructors and a captain at the U.S. Army's Aberdeen, Maryland, training center were charged with harassment and rape of female recruits. Within a month, more than fifty women had filed charges alleging sexual assault or rape. Sergeant Major Gene McKinney was tried on charges of coercing sexual favors from six women after they accused him of harassing or assaulting them. A month-long military trial resulted in McKinney's acquittal of all sex-related charges. He was, however, found guilty of a single count of obstructing justice and was subsequently demoted to master sergeant.
On July 7, 2000, the army inspector general confirmed charges of sexual harassment made by Lieutenant General Claudia Kennedy against Major General Larry Smith. Kennedy did not report the harassment until she learned Smith was to be selected to serve as deputy inspector general of the army, a position responsible for oversight of investigating instances of sexual harassment and directing programs to prevent and eliminate harassment. As a result of the substantiated charges, Smith did not assume the position of deputy inspector general and was issued an administrative memorandum of reprimand.
Military regulations forbid intimate relations between officers and enlisted personnel and between supervisors and their subordinates. The official army policy on sexual harassment calls for "zero tolerance" on the issue, and the edict is drilled into soldiers from their first day in the service. Nevertheless, violations continue throughout the armed services. Through the Department of Veterans Affairs, female veterans are counseled for sexual trauma. Caseloads are up sharply, from 2,090 in 1993 to more than ten thousand just nine years later. Marsha Tansey Four, Chair of the Advisory Committee on Women Veterans in the U.S. Department of Veterans Affairs, testified before the U.S. House of Representatives Veteran Affairs Committee on May 6, 2004 that a 2002 survey had found that 5% of female veterans and 1% of male veterans had experienced sexual trauma in the military.
The situation in the military is aggravated by the almost absolute power a superior has over a subordinate, especially in basic and advanced training units. From the moment recruits enter basic training, they learn that they must always obey their drill sergeants. With such absolute, unquestioned power, the drill sergeant can easily make a purposely difficult situation even worse.
Teri Spahr Nelson, a therapist and editor of For Love of Country: Confronting Rape and Sexual Harassment in the Military (Binghamton, NY: Haworth Maltreatment and Trauma Press, 2002), estimated that "two-thirds of female service members experience unwanted, uninvited sexual behavior in the military. The problems of sexual harassment and sexual assault in the U.S. military are epidemic." Nelson wrote that in one year alone, an estimated 9% of women in the Marines, 8% in the Army, 6% in the Navy, and 4% in the Air Force and Coast Guard have very likely been victims of rape or attempted rape.
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