With the #metoo movement, Harvey Weinstein and more, sexual harassment is top of mind. Especially here in California where the new training requirements must be completed by Jan. 1, 2020. Remember, this new regulation requires 2-hours of supervisory training for all employers with 5 or more employees, and one-hour for non-supervisory employees. If you have questions about the training or if you want to schedule a training session, give me a call (760-218-6960) or send me an email.
The term “sexual harassment” is a young one. It was coined some time in the early to mid 1970s, at either MIT or Cornell University. In the book, In Our Time: Memoir of a Revolution, Cornell University activists felt that they were the first to use the term. They were working on signs for a Speak Out and were trying out different terms. Finally someone said, “sexual harassment” and that term resonated with everyone. The term includes both overt and subtle actions that the women were experiencing. Mary Rowe, Ph.d., also used the term in the mid-70s in a report at MIT about discrimination. But she has stated that she didn’t think she was the first one to use the word.
Major Court Cases and Happenings
When we look back on the history of sexual harassment, these are the significant court cases. These cases shaped the legal landscape of harassment.
Supreme Court’s first sexual harassment decision
Meritor Savings Bank v Vinson (1986).
The facts of the case are from 1974-1978. At the time Mechelle Vinson worked as a teller at Capitol City Federal Savings and Loan Association, which later became Meritor Savings Bank. She brought a lawsuit based on three years of sexual harassment which led to a hostile work environment. This was the first case of this type that the U.S. Supreme Court heard. The Court found that sexual harassment was discrimination and was a violation of Title VII of the Civil Rights Act of 1964. Prior to this ruling, the federal Equal Employment Opportunity Commission (EEOC) received about 10 cases per year. In 1987, the EEOC received 624 reports of sexual harassment.
Anita Hill and the Clarence Thomas Hearings and Civil Rights Act of 1991.
Anita Hill’s televised testimony in front of Congress brought sexual harassment into America’s homes. Complaints about harassment jumped after her testimony. Later that year, the President signed the Civil Rights Act of 1991 into law. This law gave employees the right to a jury trial and also to collect compensatory and punitive damages.
Additional U.S. Supreme Court Decisions
Harris v. Forklift Systems (1993)
In another U.S. Supreme Court decision, the court clarified the definition of abusive or hostile environment. In this case, Teresa Harris worked at Forklift Systems in 1985-1987. She complained to her supervisor about his actions, he said he would stop. When he continued, she quit and sued.
The district court said that the supervisor’s actions conduct would have made any “reasonable woman” uncomfortable but would not have affected their psychological well being and performance at work. Therefore, the actions weren’t a violation of Title VII. After that decision was upheld by the Appeals court, the US Supreme Court picked it up. That court said that an environment “that does not seriously affect employees’ psychological well-being can and often will detract from… job performance, discourage employees from staying on the job, or keep them from advancing in their careers.” Therefore, if the work environment “would reasonably be perceived, and is perceived, as hostile or abusive” then it is hostile or abusive.
Burlington Industries v. Ellerth and Faragher v City of Boca Raton (1998)
These two cases are often references together. Together they provide an affirmative defense for employers. In the first case, Kimberly Ellerth sued her employer, Burlington Industries. She alleged that the VP of sales made sexual and offensive remarks to her. She also noted several times where he threatened her job if she didn’t comply with his advances.
In the second case, Beth Ann Faragher worked as a life guard for the City of Boca Raton. She complained about 2 supervisors who had created a “sexually hostile atmosphere” at work. They used offensive terms to refer to women and there was constant uninvited offensive touching.
Based on these facts, the U.S. Supreme Court established a strict employer liability for all supervisor sexual harassment. At the same time, it gave the employer an opportunity to show that it should not be held responsible when the employee suffered no tangible adverse employment impact.
The Court explained that in order to use the affirmative defense and avoid liability for the harassment, an employer must prove two things: (1) that it took reasonable care to “prevent and correct promptly any sexually harassing behavior” and (2) that the employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.”
ACTION ITEMS FOR EMPLOYERS
MAKE SURE YOUR POLICY CONTAINS THESE 5 ITEMS
- Have a clear, well-written policy. Make sure everyone knows that everyone in the entire organization is responsible for complying with the policy.
- Provide multiple avenues for employees to register a complaint
- Review the policy upon hire and regularly afterwards
- Provide procedures for investigating complaints that is fair, prompt and thorough
- Emphasize that there won’t be any retaliation for an individual who registers a complaint
Again, if you have questions about the training or if you want to schedule a training session, give me a call (760-218-6960) or send me an email.
Make it a great day!