A Primer on Sexual Harassment Law

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2 Copyright 1992 by the National Clearinghouse for Legal Services. All Rights Reserved. 26 Clearinghouse Review 306 (July 1992) A Primer on Sexual Harassment Law By Martha F. Davis and Alison Wetherfield. Martha F. Davis is a Staff Attorney and Alison Wetherfield is the Legal Program Director with NOW Legal Defense and Education Fund, 99 Hudson St., 12th Fl., New York, NY 10013, (212) Copyright 1992 NOW Legal Defense and Education Fund, Inc. I. Introduction Millions of women in this country experience sexual harassment. While some of the forms of sexual harassment--cat calls and obscene leers on the street, for example--are probably not prohibited by law, /1/ sexual harassment in general has been prohibited as a form of sex discrimination. Federal law prohibits sexual harassment in the workplace of a government employer or an employer with more than 15 employees, and in the sale or rental of housing. Many state and local laws prohibit sex discrimination, including sexual harassment, in employment, housing, and public accommodations. /2/ As increasing numbers of legal services clients begin working at low-paying or part-time jobs, many may experience sexual harassment in the workplace. Moreover, with few affordable housing options, legal services clients may be particularly susceptible to sexual harassment by landlords. Heightened awareness of sexual harassment has led an increasing number of women to report incidents of harassment. Women should not be forced to leave hard-won jobs or affordable housing in order to avoid sexual harassment. /3/ This "Primer" is intended to give legal services advocates an overview of federal sexual harassment law in employment and housing that is pertinent to their low-income clients, and to give them some ideas about how to advise clients who want to challenge harassment without jeopardizing their jobs and homes. II. Sexual Harassment in Employment A. Defining Sexual Harassment in Employment Sexual harassment in employment is recognized as a type of sex discrimination prohibited under Title VII of the Civil Rights Act of /4/ Title VII applies to all employers of 15 or more employees.

3 For purposes of Title VII, sexual harassment is defined as "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" /5/ when any one of three criteria is met: (1) Submission to such conduct is made either explicitly or implicitly a term or condition of the individual's employment. (2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual. (3) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. /6/ In applying this definition, courts have recognized two forms of sexual harassment claims: the quid pro quo claim, and the hostile environment claim. A quid pro quo claim (literally, "this for that") involves harassment in which a supervisory employee demands sexual favors in exchange for job benefits over which that supervisor has some control or influence. By conditioning some aspect of employment on submission to sexual demands, the supervisory employee imposes a burden on women as a prerequisite to employment that men need not suffer. A hostile work environment claim involves unwelcome behavior of a sexual nature that creates an intimidating, hostile, or offensive work environment or has the effect of unreasonably interfering with an individual's work performance. Although quid pro quo claims are limited to harassment by one with authority to make substantive employment decisions (i.e., a supervisor with authority to hire, fire, and promote), hostile environment claims may include unwelcome behavior of a sexual nature by anyone in the workplace, if the employer or its agents know or reasonably should have known about the harassing conditions. B. Elements of a Sexual Harassment Claim Under Title VII 1. Quid Pro Quo Harassment To prove a quid pro quo sexual harassment claim, the plaintiff must prove that (1) the employee was a member of a protected class under the statute (i.e., the employer has 15 or more employees or is a government employer); (2) the employee was subjected to unwelcome conduct; (3) the harassment complained of was based upon the sex of the plaintiff (i.e., conduct involved sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; or the harassment was nonsexual, but only one sex was targeted for abuse); (4) the employee's submission to the unwelcome conduct was an express or implied condition for receiving job benefits, or the employee's refusal to submit to the harassing demands resulted in a tangible job detriment; and (5) the harassment was carried out by an employer or an agent of that employer. /7/

4 2. Hostile Work Environment To prove a hostile work environment claim the plaintiff must prove that (1) the employee is a member of a protected class; (2) the employee was subjected to sexual harassment in the form of unwelcome sexual or sexbased conduct in the workplace; (3) the conduct complained of was sex-based; (4) the harassment explicitly altered the terms or conditions of employment based upon sex, /8/ or was sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with the employee's job performance, or the purpose or effect of creating an intimidating, hostile, or offensive work environment; /9/ and (5) the employer knew or should have known of the harassment and failed to take prompt, effective, remedial steps. 3. The Reasonable Woman Standard The evidence of a hostile work environment is evaluated under an objective standard, in which the defendant's conduct is assessed in terms of its negative effect on the psychological wellbeing of a reasonable person in the same circumstances. It is critical to emphasize that the hypothetical reasonable person is female for purposes of sexual harassment claims if the plaintiff is a female person, /10/ and that the "totality of the circumstances" should be examined. /11/ A minimum threshold must be met to sustain a claim, and one or two sexist comments probably will not suffice unless the conduct is outrageous. /12/ In addition, if an employer acted quickly and effectively to stop an agent's harassing conduct, the claim may not be sufficiently severe and pervasive to sustain the liability of the employer. However, courts are setting high standards for "prompt and effective remedial action." /13/ C. Who May Be a Plaintiff Under Title VII? A Title VII plaintiff may be any victim of sexual harassment who is an employee of an employer in interstate commerce with 15 or more employees, or of a city, state, or federal government employer (not including the noncivilian sector of the military). /14/ D. Who May Be a Defendant Under Title VII? A Title VII defendant may be a government employer /15/ (not including the military) or an employer in interstate commerce with 15 or more employees, and/or "any agent" of such an employer. Unions and job referral agencies are also covered under Title VII. /16/ Courts have held that supervisory employees, as "agents" of the employer, may also be named as defendants in a suit. Although some argue that this applies only if the supervisor has harassed the employee, others argue that knowledge of the harassment and failure to take

5 preventive steps ("ratification and condonation") if the supervisor has the power to do so are sufficient basis for liability. It is fairly clear that an institutional employer and an individual supervisor are both liable for a supervisor's harassing acts if he harassed someone with whom he had a supervisory relationship. /17/ It is also fairly clear that an institutional employer is liable for the acts of supervisors out of the line of authority, and/or of coworkers, if the institution, through its agents, knew or should have known of the harassment and failed to take meaningful steps to stop it. The sex of the defendant is not relevant to a Title VII claim. Title VII protects "any individual" from employment-related discrimination "based on sex." However, a hostile work environment that is for both sexes equally bad may not constitute discrimination unless the treatment can be shown to be "based upon [the] sex" of the employee. E. Jurisdictional/Procedural Prerequisites to Title VII Suit 1. Administrative Complaint Procedures A complainant must file an administrative complaint with the EEOC and the local or state equal employment enforcement agency within a specified time period following the last discriminatory act. There is no fee for filing. Federal employees must file with their designated EEO contact within 90 days. Employees of private employers and state and local government employers must file with the EEOC within 180 days unless there is a state deferral agency with whom a charge is also filed. In such cases, the period is extended to 300 days. To ensure preservation of the complainant's right to sue individuals, as well as the employer as defendants in court, the complainant should name them in the administrative complaint. An EEOC complaint should also characterize the discrimination broadly to avoid any later claim that "she did not complain about that to the EEOC." Once a complaint is filed with the EEOC, the agency will notify the employer of the complaint and conduct an investigation. If the agency concludes that sexual harassment did occur, it will attempt to resolve the problem by mediating between the claimant and the employer. If the claim cannot be resolved, the EEOC will either issue a "right to sue" letter, or notify the client that it intends to initiate a lawsuit on the client's behalf. If the EEOC initiates the lawsuit, the case will be litigated without cost to the client, and the client may recover monetary damages. However, the agency rarely initiates the lawsuits. A "right to sue" letter means that the EEOC will not bring the case on the client's behalf. The letter will indicate whether or not the EEOC believes that discrimination took place. However, the EEOC's conclusions have no preclusive effect. Regardless of the EEOC's conclusions, the client can initiate a lawsuit in court.

6 2. Deadline for Filing in Court Upon receipt of the right to sue letter, the complainant has 90 days within which to file a complaint in federal court. A party who wishes to expedite the process may request a right to sue letter after 180 days, without waiting for an administrative determination. However, a complainant cannot file in court without first pursuing her administrative remedies. F. Title VII Remedies Title VII remedies for sexual harassment include declaratory and injunctive relief, back pay, front pay under certain conditions, /18/ and attorney fees and costs. Under the Civil Rights Act of 1991, a claimant can request compensatory and punitive damages for intentional discrimination. Compensatory and punitive damages under the 1991 Act, however, are capped at $50,000 for employers with 100 or fewer employees; $100,000 for those with employees; $200,000 for employers with employees; and $300,000 for employers of more than 500 workers. III. Sexual Harassment in Housing A. Defining Sexual Harassment in Housing The Fair Housing Act (FHA) of Title VIII /19/ prohibits discrimination on the basis of sex in the sale or rental of housing. /20/ The FHA prohibits sexual harassment by landlords, real estate brokers, and others involved in showing, renting, and selling homes. It provides both compensatory and punitive damages for violations of the Act. A number of courts have held that the prohibition on sex discrimination under the FHA parallels the prohibition under Title VII, encompassing both quid pro quo and hostile living environment claims of sexual harassment. /21/ Quid pro quo harassment was at issue in Grieger v. Sheets. /22/ In Grieger, a landlord told his tenant that she would have to comply with his demands for sexual favors as a condition of both her continued tenancy and the landlord's performance of repairs on the rented house. When she refused to submit, the landlord harassed and intimidated the tenant and her husband, threatened to shoot her husband, failed to complete the repairs that he had agreed to make, damaged their property, advised them that their lease would not be renewed, and forced them to get rid of their dog. The Grieger court found that based on these facts, the tenant could raise as a violation of the FHA a claim of quid pro quo sexual harassment. /23/ Hostile environment was addressed in New York v. Merlino. /24/ In Merlino, female customers of a real-estate broker complained of unwanted physical touching and suggestive sexual comments and propositions from the broker. /25/ Citing Shellhammer v. Lewallen, /26/ in which an AFDC recipient repeatedly rejected her landlord's sexual advances, only to be summarily evicted when her shelter grant was late, the court noted that Lewallen recognized

7 both quid pro quo and hostile environment forms of sexual harassment claims under Title VIII: a "hostile environment" for "sufficiently severe conduct"; and a "quid pro quo" for "sexual favors sought in exchange for a housing benefit." /27/ The court held that the customers could bring a claim of sexual harassment under the FHA. /28/ It noted, however, that in order for their claim to succeed, the customers "must demonstrate severe and pervasive sexual harassment, not isolated or trivial instances, and a relationship between the harassment and the housing." /29/ B. Jurisdictional Prerequisites Unlike a claim under Title VII, an individual pursuing a sexual harassment claim under the Fair Housing Act need not exhaust administrative remedies. Federal administrative remedies are, however, available. /30/ If the client decides not to initiate an administrative claim (required to be filed within one year of the discrimination), a complaint must be filed in court within two years of the harassment that forms the basis of the claim. IV. Other Potential Bases for Sexual Harassment Claims In addition to claims under Title VII or the FHA, claims of sexual harassment in either employment or housing may be appropriate under the following provisions: (1) Federal and state constitutional equal protection and due process clauses, and state constitution equal rights amendments, especially if the employer or the landlord is a state actor. (2) 42 U.S.C. Sec and related civil rights laws if the employer is a state government or the housing is state-subsidized. /31/ (3) State and local equal employment, human rights, and public accommodations laws. In the employment area, these may reach smaller employers and may also afford greater compensatory and punitive damages than those available under Title VII. (4) Title IX of the Equal Education Amendments of /32/ Title IX applies to employees of federally funded educational programs and prohibits sexual harassment of students by teachers or other school employees. The Supreme Court has recently held that damages are available for violations of the Act. /33/ (5) Executive Order 11246, which prohibits sex discrimination, including harassment, by federal contractors. (6) Common Law Claims and Defenses. In sexual harassment cases, plaintiffs have sustained claims for damages upon common-law tort claims such as assault, battery, intentional infliction of emotional distress, and tortious interference with contract. /34/ When sexual harassment in housing is at issue, claimants have alleged breach of a covenant of good faith and fair dealing, wrongful eviction, and wrongful constructive eviction. /35/

8 V. Advice to Sexual Harassment Targets A court or administrative proceeding may not be the most effective or the fastest way to resolve a sexual harassment problem. Women may be unwilling to jeopardize their jobs, homes, or reputations by making harassment a public issue. In addition, some instances of harassment may not rise to the level of severity required to succeed in federal court, despite serious repercussions for those who are its victims. A number of strategic, informal actions should be taken as soon as the harassed client is ready, before taking formal action before a court or an agency. Not only will these strategic actions begin to empower the client, but they will place the client in a better position if she ultimately decides to file a claim. First, if a client thinks that she is the subject of sexual harassment, she should begin to keep notes. She should write down the date, time, what happened, who did it, and who witnessed it. These notes should be kept in a safe place at home, separate from other personal diaries or records. If the harasser is the client's employer and the client has a good employment record that someone may tamper with in order to justify a termination, she should obtain a copy of those records and send them to herself in a sealed envelope. Such records may be useful evidence of the state of her employment record at the time of delivery, and will be safe from loss or tampering. If the harasser is a landlord, the client should assemble evidence that her rent payments have been made on time, and take pictures to prove that she has not damaged the rental unit. The client also should keep as evidence any notes, cards, or presents from the harasser. Second, the client should talk to sympathetic coworkers or other tenants if she feels safe in doing so. Sometimes, informal actions by coworkers may be sufficient to stem sexual harassment. For example, coworkers may intimidate a harasser by organizing a series of lunchtime meetings to discuss sexual harassment, or by gathering around the client's desk with notebooks poised to take down the harasser's words each time he approaches. Third, a client may confront the harasser. If at all possible, this should be done by letter. /36/ A letter (a copy of which should be kept in a safe place) will create a permanent record of the client's attempts to stop the harassment and eliminate the possibility that the harasser will be able to plead ignorance about the offensiveness of his actions. Fourth, the client may pursue her remedies through internal grievance procedures. If the client is a union member, she should consider contacting her local representative or shop steward and consider following grievance procedures outlined in the contract. Many workplaces have internal grievance procedures for sexual harassment. In order to be effective, the client must be able to present her story to a neutral individual who will initiate an unbiased investigation. If the sexual harassment policy requires that the client tell her supervisor about the problem, and the supervisor or his superior is her harasser, the policy may not be worth pursuing. The client will have to make a judgment about the policy's effectiveness based on her own circumstances and how prior complaints have been handled. Finally, a client who pursues informal and administrative remedies and finally decides to go to court should be prepared for a long, drawn-out litigation, with the possibility of intensive and

9 intrusive fact-finding. However, the Clarence Thomas-Anita Hill hearings last fall have done much to educate the public, including judges and employers, about sexual harassment. We can hope that in the future, charges of sexual harassment will be evaluated fairly based on the facts and circumstances of each case, without stereotypical assumptions about what women should be willing to accept as the price of a job or a home. footnotes 1. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 2. In some states, for example, public accommodations laws may support a claim of sexual harassment by a public assistance recipient against her welfare caseworker or other welfare administration personnel if the harassment takes place at the income maintenance center. 3. The consequences of sexual harassment can be significant for poor working women seeking to maintain their jobs. A large number of harassment victims experience emotional stress and impaired job performance as a result of harassment. One study found that 75 percent of the women who were sexually harassed quit their jobs, while another study found that nearly half of sexual harassment victims were fired after refusing to comply with sexual requests. Kaplan, Consequences of Sexual Harassment, 6 AFFILIA: J. WOMEN & SOC. WORK 50, (Fall 1991). 4. Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e(b); 42 U.S.C. Sec. 2000e C.F.R. Sec (a). The threshold requirement under the EEOC definition is that the alleged sexual acts were "unwelcome." Title VII does not outlaw consensual sexual relations. However, the fact that the alleged harasser and victim had a consensual relationship is not per se fatal to a claim. Even if the complaining party is found to have entered "voluntarily" into a relationship, a case of sexual harassment may still be made with respect to any unwelcome acts. Meritor, 477 U.S. at C.F.R. Sec (a). 7. Sparks v. Pilot Freight Carriers, 830 F.2d 1554, (11th Cir. 1987) (institutional employer and individual agent directly liable for own acts as those of "employer"). See also Meritor, 477 U.S. at 72-73; Huddleston v. Roger Dean Chevrolet, 845 F.2d 900, 904 (11th Cir. 1988). In a quid pro quo claim, an employer is strictly liable for the acts of a supervisor because the supervisor relied upon his agency status to coerce the victim. See, e.g., Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, (11th Cir. 1989); RESTATEMENT (SECOND) OF AGENCY 219(2)(d) (1958) (agent's actions are within the scope of his employment when he acts with the apparent authority of the employer). 8. E.g., Carroll v. Talman Sav. & Loan Ass'n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980) (Clearinghouse No. 27,950) (placing specific burdens on women not placed on men); EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981) (Clearinghouse No.

10 27,687) (requiring women to wear revealing clothes that prompt sexual harassment affects adversely the terms of employment). 9. See, e.g., Meritor, 477 U.S. at 63-69; Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); Henson v. City of Dundee, 682 F.2d 897, (11th Cir. 1982); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp (M.D. Fla. 1991). 10. Ellison, 924 F.2d at ; Robinson, 760 F. Supp. at C.F.R. Sec (b). 12. See Vaughn v. Pool Offshore Co., 683 F.2d 922, (5th Cir. 1982) (case involving race) (comments made, which complainant participated in, do not make a case); Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir. 1977) (case involving race) (a few sporadic comments do not make a case). 13. See Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988), cert. denied, 489 U.S (1989); Tunis v. Corning Glass Works, 747 F. Supp. 951, (S.D.N.Y. 1990); Llewellyn v. Celanese Corp., 693 F. Supp. 369 (W.D.N.C. 1988) U.S.C. Sec. 2000e. 15. Id. at Sec. 2000e Id. at Sec. 2000e. 17. See, e.g., Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987). 18. See Arnold v. City of Seminole, 614 F. Supp. 853 (E.D. Okla. 1985). 19. Fair Housing Act, 42 U.S.C. Secs U.S.C. Sec See generally Annotation, Sex Discrimination in Housing, 81 A.L.R. 4th 205 (1990 & Supp. 1991). Several state courts have also held that sexual harassment violates state statutes prohibiting sex discrimination. See, e.g., Gnerre v. Mass. Comm'n Against Discrimination, 402 Mass. 502, 524 N.E.2d 84 (1988); Chomick v. Wittenkind, 128 Wis. 2d 188, 381 N.W.2d 561 (Wis. Ct. App. 1985). 22. Grieger v. Sheets, 689 F. Supp. 835 (N.D. Ill. 1988). 23. Id. at New York v. Merlino, 694 F. Supp (S.D.N.Y. 1988). 25. Id. at 1102.

11 26. Fair Housing-Fair Lending Rep. (P-H) Para. 15,472 (W.D. Ohio 1983), aff'd, 770 F.2d 167 (6th Cir. 1985). 27. Merlino, 694 F. Supp. at Id. 29. Id U.S.C. Secs and 3613(a)(2). 31. See Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir. 1986). However, it is not permissible to use the 1866 statutes to bypass Title VII procedural requirements under Section See Great Am. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366 (1979) U.S.C. Secs et seq. 33. Franklin v. Gwinnett County Pub. Schools, 60 U.S.L.W (U.S. Feb. 26, 1992). 34. See, e.g., Pease v. Alford Photo Indus., 667 F. Supp (W.D. Tenn. 1987) (unwelcome "sexually harassing and humiliating touching" by company president constituted assault, battery, invasion of privacy, and intentional infliction of emotional distress so that company and president were jointly and severally liable for compensatory and punitive damages); Kyriazi v. Western Elec. Co., 476 F. Supp. 335 (D.N.J. 1979) (punitive damages assessed against plaintiff's former supervisors for tortious interference with contract); Clark v. World Airways, 24 F.E.P. Cases 305, 310 (D.D.C. 1980) (upholding jury verdict assessing punitive damages against employer for assault and battery); Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 153 (1987) (corporation held independently liable for intentional infliction of emotional distress, since failure to take action was itself outrageous where harassment was reported and observed); O'Reilly v. Executone of Albany, Inc., 121 A.D.2d 772, 503 N.Y.S.2d 185 (1986) (allegations of sexual harassment, including touching in a sexual manner, stated a cause of action for battery and intentional infliction of emotional distress against employer and supervisors). But see Miller v. Aluminum Co. of Am., 679 F. Supp. 495 (W.D. Pa. 1988), aff'd, 856 F.2d 182 (3d Cir. 1988) (embarrassing remark about plaintiff's breasts did not amount to "outrageous" behavior sufficient to support tort claim); Studstill v. Acceptance Corp., 806 F.2d 1005 (11th Cir. 1986) (under Florida law, verbal sexual harassment not sufficiently heinous to support claim for intentional infliction of emotional distress) AM. J. PROOF FACTS 3D, Sexual Harassment by Landlord A sample "Letter to a Harasser" is included in the box accompanying this article. The following "Letter to a Harasser" can be tailored to fit individual needs:

12 Date Dear Harasser: I am writing this letter to inform you that I do not welcome and have been made to feel (uncomfortable) (intimidated) (threatened) (angered) by your action(s). This (these) action(s) I am referring to is (include): Examples:At the office's 1988 Christmas party, telling me that I could go far in the company if I was a "good sport" and a "team player," and that I could prove this by sleeping with you. On or around July 24, 1988, leaving a magazine that I consider obscene on my desk, opened to the centerfold. When I asked if it was yours, you claimed that you thought that I would be interested in the subject. On three separate occasions, starting on the second day of my employment, following me into the supply closet to hug me and fondle my breasts. On numerous occasions, standing around my desk to speculate with Joe Chauvinist about my possible sexual practices. This behavior is offensive to me and constitutes sexual harassment. This (these) incident(s) has (have) created a (unprofessional) (tense) (stressful) (detrimental) (harmful) working environment that interferes with my job performance, particularly in any matters that require contact with you. Therefore, I am asking you to stop this illegal harassment now. Optional Paragraph: [If you continue with this behavior, or harass me further as a result of this letter, I will deliver a copy of this letter to (your supervisor, ) (the Personnel Department) (my union representative) (the president of the company, ). [NOTE: use the steps of the employer's grievance procedure, if any exist.] If necessary, I will file a formal complaint with the (Equal Employment Opportunity Commission) (state or local Fair Employment Practices agency), which investigates charges of employment discrimination. Sincerely Harassee (cc: )