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Sexual Harassment, Looking at Case History

From Toni Ahl, our partner at EEO Advantage

It seems you cannot turn on the television without hearing about someone else being accused of sexual harassment. The alleged harasser may be a celebrity, an executive or a politician. Some of the allegations contained in these cases go back twenty years or more. In light of all of the current publicity about the issue, I thought it might be interesting to take a look back at how this issue has evolved through the years. In 1964, the Civil Rights Act was passed which prohibited discrimination based on sex. The Equal Employment Opportunity Commission (EEOC) stated in its policy guidance issued in 1980 that sexual harassment is a form of sex discrimination and, therefore, illegal under Title VII of the Civil Rights Act of 1964, as amended. The guidance established the criteria for determining when unwelcome conduct of a sexual nature was determined to be sexual harassment. It also defined when an employer could be held liable and suggested affirmative actions an employer should take to prevent sexual harassment in the workplace. I began working for EEOC in 1984 and do not remember sexual harassment being alleged in that many of the charges EEOC received at that point in time.

A Supreme Court case in 1986, Meritor Savings Bank v Vinson, was the first sexual harassment case to reach the high court. The Court agreed that there were two types of sexual harassment, quid pro quo (now called tangible employment action) and hostile work environment. The Justices agreed that both types of harassment are illegal under Title VII of the Civil Rights Act of 1964, as amended as forms of sex discrimination. The Vinson case gave us the definition we still use for hostile work environment sexual harassment that the conduct must be severe or pervasive. Additionally, the analysis conducted in this case set forth the “reasonable person” for determining if the environment was hostile or abusive. This case also addressed the issue of voluntary sexual contact. The Court found that “voluntary” sexual activity or activity, which the employee was not actually forced to participate in against his/her will, is not a defense to a sexual harassment suit brought under Title VII. The “unwelcomeness” of the conduct, rather than if the conduct was forced, was the determining factor for sexual harassment. The ruling addressed preventive and remedial action taken in response to allegations of sexual harassment. Following the Vinson case, in 1990, EEOC issued Policy Guidance on Current Issues of Sexual Harassment. This guidance was issued to provide information about establishing employer responsibility due to recent cases. It also provided a definition of sexual harassment. It contained information about evaluating evidence in a case involving sexual harassment. It discussed establishing credibility since many times there are no witnesses to the alleged harassment.

There was, however, an influx of charges after the confirmation hearing of Clarence Thomas for the Supreme Court in 1991 brought a lot of public attention to the issue. At that time, Clarence Thomas was the Chair of EEOC. He was accused of sexually harassing Anita Hill, one of his staff members. So, here was the head of the agency, which was charged with eradicating discrimination, being accused of violating one of those very laws. The hearings were watched by many people who became aware of what sexual harassment might be. The hearings certainly raised public awareness about sexual harassment. Next month, I will provide a discussion of the two landmark cases that followed in 1998. Stay tuned!

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