Issue of Sexual Harrassment in the Workplace

Hypothesis

Sexual harassment in the workplace does not protect the victims and offers little to no punishment for the accused. Sexual harassment can come in many forms in the workplace. Hostile work or educational environments can be created by behaviors such as addressing women in crude or objectifying terms, posting pornographic images in the office, and by making demeaning or derogatory statements about women, such as telling anti-female jokes (National Academies of Sciences, 2018). This can become a huge issue within the organization. Women are often afraid to come forward with the fear of backlash or losing their job. Sexual harassment undermines women’s professional and educational attainment and mental and physical health (National Academies of Sciences, 2018).

Literature Review

Sexual harassment is a form of discrimination that includes gender harassment (verbal and nonverbal behaviors that convey hostility to, objectification of, exclusion of, or second-class status about members of one gender), unwanted sexual attention (verbally or physically unwelcome sexual advances, which can include assault), and sexual coercion (when favorable professional or educational treatment is conditioned on sexual activity) (National Academies of Sciences, 2018). According to the National Academies of Sciences journal, “Sexual harassment undermines women’s professional and educational attainment and mental and physical health. When women experience sexual harassment in the workplace, the professional outcomes include declines in job satisfaction; withdrawal from their organization (i.e., distancing themselves from the work either physically or mentally without actually quitting, having thoughts or intentions of leaving their job, and actually leaving their job); declines in organizational commitment, increases in job stress; and declines in productivity or performance” (National Academies of Sciences, 2018).

Gender-based discrimination complaints account for approximately 30% of the discrimination claims filed each year with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing the anti-discrimination laws. This is roughly the same proportion as race and national origin discrimination claims combined (Goodman-Delahunty, 1999). The Civil Rights Act of 1964, offered a fresh start for many individuals who were discriminated against. After the law was passed many individuals benefited from protection from sexual and employment discrimination. 

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In the case of Ellison v. Brady, “the U.S. Court of Appeals for the ninth Circuit took two giant steps toward easing the burden on plaintiffs seeking to establish "hostile environment" sexual harassment” (Simon, 1991). According to Simon, “First, the court rejected the traditional reasonable person standard for determining when a workplace is sufficiently hostile to constitute sexual harassment. Finding that the traditional model “tends to be male-biased and tends to systematically ignore the experiences of women, the court opted instead for a “reasonable woman” standard, which evaluates the alleged harassment from the perspective of the victim” (Simon, 1991). Ellison came before the Ninth Circuit after the district court had granted the employer's motion for summary judgment (Simon, 1991). The court of appeals therefore considered only whether the plaintiff could make a case for sexual harassment based on the evidence, and not whether she would ultimately prevail at trial (Simon, 1991). For Ellison it was hard to make a solid case due to the nature of the relationship between Ellison and gray. They both were more of associates than co-workers. Simon state, “Kerry Ellison and Sterling Gray worked for the Internal Revenue Service (IRS) in San Mateo, California. The two were not friends and did not work closely together. In June 1986, Ellison and Gray went to lunch together, a common practice among employees in their office. From that point forward, Gray began to “hang around” Ellison's desk and to pester her with unnecessary questions” (Simon, 1991). Simon further state, “In October, Gray asked Ellison to meet him for a drink after work. Ellison declined and tried to avoid Gray during work hours. Ellison was “frantic” upon being notified of Gray's pending return to San Mateo. She filed a formal complaint of sexual harassment with the IRS and obtained permission to transfer to San Francisco temporarily upon Gray's return to San Mateo” (Simon, 1991). While she was in San Francisco, Gray sent her another letter (Simon, 1991). The IRS ultimately rejected Ellison's complaint because it believed that Gray's conduct did not constitute a “pattern or practice” of sexual harassment within regulations established by the Equal Employment Opportunity Commission (EEOC) (Simon, 1991). At this point the IRS is not taking Ellison’s accusations seriously. Ellison then filed suit against the IRS for sexual harassment. The IRS moved for summary judgment on the ground that Ellison had failed to state a prima facie case of sexual harassment due to a hostile working environment (Simon, 1991). According to Simon, “the court noted the U.S. Supreme Court's decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment constitutes sex discrimination in violation of Title VII” (Simon, 1991). The court then reviewed the two types of sexual harassment generally recognized by the courts: quid pro quo," when employers condition employment benefits on sexual favors; and "hostile environment," when employees are forced to work in offensive or abusive environments (Simon, 1991).

According to Simon, “The court then restated its own three-part test to determine when an employee is confronted with a hostile environment: Hostile environment exists when an employee can show that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical contact of a sexual nature, that this conduct was unwelcome, and that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working noting that the question of whether a hostile environment exists is subject to de novo review, the court focused its discussion on whether Gray's conduct satisfied the third element of the test” (Simon, 1991).

The E.E.O.C. Guidelines definition encompasses both quid pro quo and intangible harassment (Simon, 1991). Schoenheider stated, “the Guidelines also outline a process for determining whether certain forms of conduct constitute illegal harassment: “The Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred” (Schoenheider, 1986). This case was one of many that focused on changing the policy and procedures of sexual harassment in the workplace” (Schoenheider, 1986). Schoenheider also argued, “the E.E.O.C. Guidelines impose a "constructive knowledge" standard on the employer for harassment by coworkers and non- employees, so that liability arises only if the employer knew or should have known of the harassment” (Schoenheider, 1986). When an employer is held liable for unlawful sex discrimination, Title VII authorizes the court to enjoin the employer from practicing discrimination and to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay or any other equitable relief as the court deems appropriate” (Schoenheider, 1986).

Analysis

Sexual harassment in the workplace is a gender base issue in which there are policies in place that has little to no effect on the issue. The process in which sexual harassment is reported can be sketchy. In the Ellison V. Brady case, both parties were mutual friends at one point. When one party decides the situation is getting out of hand or they have a sense of fear, the situation takes a drastic turn. Many women are afraid to come forward out of fear, embarrassment or retaliation. In the workplace, there are standard policies and procedures that are in place for instances where sexual harassment is reported. Many sexual harassment claims focus on the accuser and less on the issue at hand.

According to Schoenheider, “the majority of employment claims, including sexual harassment suits, are filed as common law tort claims, relying on common law tort theories such as retaliatory discharge for violation of public policy, intentional infliction of emotional distress, negligent infliction of emotional distress, invasion of privacy, negligence, assault, and battery” (Schoenheider, 1986). Management and supervisors are responsible for the safety and protection of their employees. In the workplace, there is a sense of responsibility when it comes to sexual harassment. If the work environment is dominated by males, the narrative is most likely changed on how and when sexual harassment gets reported. Management will need to be proactive in making sure the workplace is safe and free of any harassment or discrimination.

The steps taken to address the issue or complaint varies in the organization. If you are a federal, state or city employee, there are steps and protocols in place in addressing the issue. In the private sector it will vary from company to company. However, the EEOC is in place for every employee who wishes to report harassment in the workplace. The outcome in many sexual harassment cases leads to the victim receiving some type of settlement or judgement in their favor. However, what happens to the accused. There is often little to no jail time for the accused to serve. The company or organization gives the accused the opportunity to start over with a new work environment or a transfer to another department. The victim does not receive 100% justice when the individual is place to work in another environment where there can be another similar situation or issue. There are policies and rules in place for prevention but not so much after something is reported.

Conclusion and Policy Recommendation

Sexual harassment procedures and policies has evolved in many organizations. There are many trainings and workshops that offer prevention and further development. Work conditions for women have changed to accommodate their needs in organizations. Title IX and title VII work hand in hand to prevent discrimination. Title VII prohibits discrimination against on race, color, sex, religion and national origin. Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. In higher education settings, sexual harassment can be difficult to prove and many reports are not taken seriously.

One policy recommendation is to create quarterly trainings that focus on prevention and creating a positive work environment. The training should be focused for all employees including management. Focusing on sexual harassment prevention is a major key in the workplace. Human Resources should focus on how sexual harassment and misconduct is handled in an effective way. This can reassure the victim they are focused and proactive in the investigation process. Coming forward as a victim of sexual harassment is not easy especially among co-workers and peers. In the workplace many offenders receive little to no punishment. Implementing tougher polices and consequences should be somewhat effective in reducing sexual harassment in the workplace.

Based on this sexual harassment research, it is concluded that sexual harassment in the workplace is a huge issue. Policies and procedures vary from organization to organization. The EEOC is set in place for employees who wish to file a discrimination complaint against their employer. This can include reporting an incident to a supervisor or manager who chooses not to proceed with any actions based upon the investigation or report. Furthermore, sexual harassment in the workplace will continue to be a huge issue within many organizations. There are little to no preventive measures in place that will put a stop to sexual harassment. Women will continue to be victimized and sexualized until there is an law or Act in place.

References

• National Academies of Sciences, Engineering, and Medicine. 2018.
• Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. Washington, DC: The National Academies Press. doi: https:// doi.org/10.17226/24994.
• Simon, H. A. (1991). Ellison v. Brady: A "Reasonable Woman" Standard for Sexual Harassment. Employee Relations Law Journal, 17(1), 71-80. Retrieved from https://link galecom.ez.lib.jjay.cuny.edu/apps/doc/A10767012/LT?u=cuny_johnjay&sid=LT&xid=c9a59cd3 
• Goodman-Delahunty, J. (1999). Pragmatic support for the reasonable victim standard in hostile workplace sexual harassment cases. Psychology, Public Policy, and Law, 5(3), 519.
• York, K. (1989). Defining Sexual Harassment in Workplaces: A Policy-Capturing Approach. Academy of Management Journal, 32(4), 830-850.
• Schoenheider, K. J. (1986). A Theory of Tort Liability for Sexual Harassment in the Workplace. University of Pennsylvania Law Review, 134(6), 1461-1495.