Journal 3

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Course Learning Outcomes for Unit III Upon completion of this unit, students should be able to:

2. Summarize Title VII of the Civil Rights Act of 1964. 2.1 Identify the conduct that constitutes sexual harassment. 2.2 Analyze the protection against sexual harassment under Title VII.

3. Analyze the impact that workplace sexual harassment has on an organization.

3.1 Summarize the prevalence and cost of harassment in the workplace. 3.2 Analyze the appropriate response of employers to harassment and ways to prevent its

occurrence.

Course/Unit Learning Outcomes

Learning Activity

2.1 Unit Lesson Chapter 9 Unit III Case Study

2.2 Unit Lesson Chapter 9 Unit III Case Study

3.1 Unit Lesson Chapter 9 Unit III Case Study

3.2 Unit Lesson Chapter 9 Unit III Case Study

Reading Assignment Chapter 9: Harassment, pp. 295–333

Unit Lesson It is hard to imagine a more perfect example of alleged sexual harassment in the workplace than played out in the hearings to confirm Clarence Thomas as a Supreme Court justice in 1991. Many in human resources (HR) and employment law watched the testimony of Anita Hill with great interest, but few could have known how significantly this event would affect the workplace and the work of employment lawyers and human resource professionals. While the nation watched, Hill described under oath how Thomas allegedly harassed her while she worked for him from 1981 to 1983 in federal government agencies. Hill claimed that Thomas talked about scenes in pornographic movies and images in pornographic materials, as well as boasting of his own sexual abilities (“The Thomas Nomination,” 1991). Thomas’ strong denial and the lack of witnesses to any of the alleged interaction set the stage for a classic he said/she said scenario. The “he said” side of the equation carried the day, and Thomas ended up being confirmed by the Senate by a slim margin. Nevertheless, sexual harassment took a great leap forward in public consciousness. With sex added as a protected category in the last days before Congress voted on the Civil Rights Act of 1964, sexual harassment was likely not even on the radar of the drafters. According to Cohen (2016), sexual harassment has been around as long as women have been in the workplace. As women began to employ in numbers in manufacturing and clerical roles in the early 20th century, they faced physical and verbal assaults by male managers. This conduct continued for decades and women had only the options of enduring sexually

UNIT III STUDY GUIDE

Harassment in the Workplace

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harassing conduct or quitting. Complaining was ineffective; at most, women were told the conduct was harmless and complainers were frequently retaliated against (Cohen, 2016). Title VII’s passage laid the groundwork for a legal remedy for sexual harassment, but it was not until 1975 that the term sexual harassment was coined (Cohen, 2016). Then, in the late 1970s, attorney Catharine MacKinnon developed the legal theory for sexual harassment as a violation of Title VII, including the concept of hostile work environment. Until this theory was tested and upheld by the Supreme Court in Meritor Sav. Bank. v. Vinson, (1986), courts followed the “boys will be boys” thinking that left women vulnerable to environmental harassment (Strebeigh, 1991). How far have we come since the 1970s when a 1976 survey by Redbook found that 80 percent of working women reported that they had been sexually harassed in the workplace? Unfortunately, we have not come as far as you might expect. The continuing problem of workplace sexual harassment is reflected in recent surveys cited by Feldblum and Lipnic (2016) in the the Equal Employment Opportunity Commission’s (EEOC) Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace. According to Feldblum and Lipnic (2016), approximately 25 percent of women reported sexual harassment in the workplace. However, when the term sexual harassment was defined in terms of specific behaviors such as unwanted sexual attention or sexual coercion, the rate of women who reported experiencing sexual harassment rose to 40 percent. The number rose further to 60 percent when sexist or crude and offensive behavior was included in the survey. Reflecting this problem, approximately one third of the charges filed with EEOC in fiscal year 2015 included a claim of harassment, and 45 percent of those alleged sexual harassment (Feldblum & Lipnic, 2016). Many persons subjected to sexual harassment do not report it, let alone file a charge of harassment. Internal reports should be viewed by organizations as an opportunity to investigate the concern, reach a finding, and take appropriate steps based on that finding. Investigations can be stressful for the participants and the organization, but they can lay the groundwork for resolution in an efficient and productive way. In one situation, a nurse complained about an incident at the annual social gathering for the maternity and obstetrics practice for which she worked. She reported to the office administrator that at the party, while her husband was not present, one of the doctors approached her, complimented her dress, and put his arm around her, squeezing her breast as he did so. The investigation revealed no witnesses and the doctor adamantly denied the allegation. However, the nurse’s excellent record, her credibility and lack of a motive to fabricate, and the doctor’s questionable behavior and comments toward other staff tilted the scales in favor of a finding the conduct more likely than not occurred. This created a dilemma for the other doctors in the practice: ignore the findings and retain a close colleague, take steps to reprimand him, or remove him from the practice. Investigations of harassment sometimes yield findings that require difficult choices by the organization, but they also reinforce the organization’s commitment to a harassment-free workplace and can fend off costly litigation if handled appropriately. The process that played out in the medical practice follows from important developments in workplace harassment stemming from two key Supreme Court decisions in 1998. In Farager v. Boca Raton (1998) and Burlington Indus. v. Ellerth (1998), the Supreme Court resolved questions about the employer’s liability for supervisor sexual harassment and provided an affirmative defense to situations when a supervisor harasses a subordinate. Courts had struggled with when to hold employers liable for conduct by supervisors who violated employer policies, some following the theory that employers are liable for actions of their managers, but others reluctant to hold employers liable for the supervisors’ conduct that the employers had prohibited. The Supreme Court held that if an employer has a policy that prohibits harassment, provides a method for reporting such harassment, investigates reports, and takes corrective action to stop harassment if it is found to have occurred, the employer could defend itself against a legal claim even if a supervisor harassed an employee. Thus, in the medical practice situation, if the practice took steps to discipline the doctor and prevent him from harassing the nurse or others in the future, it could defend itself against a lawsuit. If it failed to take corrective action against the doctor, the practice had a strong risk of being successfully sued. The costs of harassment in the workplace are not easily quantifiable. However, they are real. Feldblum and Lipnic (2016) reported that the EEOC obtained approximately $160 million in harassment cases in fiscal year 2015, combining pre-litigation settlements and damages in lawsuits filed by the EEOC. However, this does not even include lawsuits in which EEOC was not involved. In addition to legal damages, costs include legal fees and the less quantifiable loss of productivity in the workplace caused by harassment and its aftermath.

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Employers can seek to minimize harassment in the workplace through demonstrated commitment to harassment-free workplaces at the highest levels in the organization in the form of communication of policy and complaint procedure, periodic training of employees and supervisors, and prompt response to complaints of harassment. Training is a key component of any organizational program, but organizations are often reluctant to make the financial commitment to meaningful and effective training. All too often, training is not a priority until there has been an incident of workplace harassment. At that point, however, employees may view the training cynically as merely a reaction to a legal threat, rather than a true commitment to ensuring that all employees are comfortable in the work environment. Training is most effective as an integral part of an overall culture putting the highest priority on respect in the workplace and creating clear avenues for communicating concerns. In the second decade of the 21st century, 25 years after Anita Hill went before the Senate, the scorecard on eliminating sexual and other harassment in the workplace is far from acceptable. In some ways, we have seen substantial advancements in workplaces where respect for women as well as all persons is demonstrated at the highest levels in the organization, and harassment is not tolerated. In other ways, however, there is still much room for improvement, particularly in industries where women have only recently begun to appear in greater numbers and in areas of work where improper behavior is tolerated because of the levels of stress and risk, such as law and medicine. Human resources professionals will lead the way on these necessary improvements and will need to gain the full support of their organizations for their efforts to be successful.

References Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). Cohen, S. (2016, April 11). A brief history of sexual harassment in America before Anita Hill. Time. Retrieved

from http://time.com/4286575/sexual-harassment-before-anita-hill/ Faragher v. Boca Raton, 524 U.S. 775 (1998). Feldblum, C. R., & Lipnic, V. A. (2016, June). Report of the co-chairs of the EEOC Select task force on the

study of harassment in the workplace. Retrieved from https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). Strebeigh, F. (1991, October 6). Defining law on the feminist frontier. New York Times Magazine. Retrieved

from http://www.equalwomen.com/nytmagazine1991.html The Thomas nomination; Excerpts from Senate's hearings on the Thomas nomination (Page 1 of 13)

[Interview transcript]. (1991, October 12). The New York Times. Retrieved from http://www.nytimes.com/1991/10/12/us/the-thomas-nomination-excerpts-from-senate-s-hearings-on- the-thomas-nomination.html?pagewanted=1

Suggested Reading The following PowerPoint presentations are supplements to the textbook chapter readings and are provided for further knowledge and review of the unit materials. Chapter 9: Click here to access the PowerPoint presentation. Click here to access a PDF file of the PowerPoint presentation.

Learning Activities (Nongraded) Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information.

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At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic situations that relate to employment law. Exploring these questions allows you the opportunity to further your understanding of the concepts in each chapter and prepares you for similar situations you may encounter in your workplace.

 Review the Chapter 9 questions in your textbook on pages 334–336.