Sexual Harassment & Social Change

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Hostile environment sexual harassment

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Bundy v. Jackson (1981)

Unwelcome sexual or sex-based conduct that unreasonably interferes with an individual’s performance at work by creating an intimidating, hostile, or offensive work environment

Must be “severe or pervasive”

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Quid quo pro sexual harassment

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Tomkins v. Public Service Electric & Gas Co. (1977)

Where a supervisor makes unwelcome sexual demands of a subordinate employee by offering tangible job benefits (promotion, job training, benefits) or threatening job detriment (e.g. have sex with me or you’re fired)

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Gender harassment v. sexual harassment

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Gender harassment isn't necessarily sexual in nature but related to gender stereotyping and covered by sexual harassment law (on the basis of sex)

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Severe or pervasive standard

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the frequency of the discriminatory conduct
whether it is physically threatening or humiliating rather than merely offensive, and
whether it unreasonably interferes with work performance.

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Reasonable person standard

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Would a reasonable person think this conduct is offensive

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Reasonable woman standard

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Taking into account institutionalized sexism and circumstances that would make women perceive harassment differently

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Unwelcomeness

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Correct inquiry is whether the conduct was unwelcome, not whether it was voluntary.

Evidence of a woman’s sexually provocative speech and dress is relevant to a determination of whether the conduct was unwelcome.

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Employer Responsibility: Quid Pro Quo

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Employers are liable for quid pro quo sexual harassment culminating in a tangible employment action (discharge, demotion, undesirable reassignment) by supervisory employees regardless of whether the employer knew or should have known of the harassment or had a policy forbidding the conduct.

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Employer Responsibility: Hostile Environment by Supervisor

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Employer is responsible for hostile environment sexual harassment by a supervisor unless can prove
(a) employer exercised reasonable care to prevent/correct harassment
(b) plaintiff employee unreasonably failed to take advantage of opportunities provided by the employer or to avoid harm otherwise.

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Employer Responsibility: Hostile Environment by co-workers or non-employees

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Responsible if supervisors knew or should have known about harassment, not responsible if employers took immediate & appropriate corrective action

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School Liability

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Hostile environment between students: Conduct is severe or pervasive to effect school performance, school knew or should of known and didn't take steps

Teacher-student hostile environment/quid pro quo***

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Supervisory v. peer harassment

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?

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Class action

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A group of people

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Intersectionality

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Experiences of race shaped by sexism, sexism shaped by race --Crenshaw
in Drobac

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Racialized Sexual Harassment

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Giddings: Binary opposition of lustful black women vs. "chaste" white women

Painter: Lower class women sexualized but black women assumed to be hypersexual and instigators of sex

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Ideology of exit

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Class issues: lower class blamed less for not leaving, people assume that if you have the means to leave you should or else you were asking for it, puts burden of responsibility on victim

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Prostitution Paradigm

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Hernendez: The ideal woman is white and middle class, and the farther away from that a woman becomes the more she is likened to a prostitute and sexualized

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Victim Blaming

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**

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Sexualization

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Cyberharassment

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-Keeping women off the web, taking job opportunities and pay opportunities, social connections

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Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (including remedies and filing procedures)

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“It shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”
• Title VII applies to businesses employing more than 15 people.
• The Equal Employment Opportunity Commission enforces Title VII.
• Title VII protects men as well as women.
• Many states have anti-discrimination laws that prohibit sexual harassment, some of which are broader than Title VII.
• Plaintiffs can sue employers, or harassers under state tort or contract law.
• What are the remedies?
• Title VII originally only provided reinstatement, back pay, and attorney’s fees
.
• The Civil Rights Act of 1991 amended Title VII by expanding the available remedies.
• Compensatory and punitive damages available:
• $50,000 if the employer has 15 to 100 employees
• $100,000 if the employer has 101 to 200 employees
• $200,000 if the employer has 201 to 500 employees
• $300,000 if the employer has 501 or more employees

Filing procedures?**

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EEOC Guidelines on Sexual Harassment (1981)

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Eleanor Norton Holmes
eleased the EEOC's first set of regulations outlining what constituted sexual harassment and declaring that sexual harassment was indeed a form of sexual discrimination that violated federal civil rights laws

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Office of Civil Rights of the Department of Education

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OCR enforces title IX

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Meritor Savings Bank v. Vinson

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An employee had sex with a boss because she felt it necessary to keep her job. During first trial, court rules that she was not the victim of harassment because it was voluntary. Decision later reversed: If it is voluntary but *unwelcome*, it's still harassment

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Ellison v. Brady

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Reasonable woman standard: Reasonable woman would consider sufficiently severe or pervasive to alter conditions of employment, create abusive working environment. Sex-blind=male bias.

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Robinson v. Jacksonville Shipyards, Inc.

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Sexual remarks, sexual jokes, and pornography met the reasonable woman standard for severe & pervasive to alter employment

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Harris v. Forklift Systems

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Whether a reasonable woman would find the harassment severe and pervasive enough to alter conditions of employment and create an abusive environment. Psychological well-being of the victim is relevant but not the ultimate factor in deciding. Severity and frequency are also important.

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Jenson v. Eveleth Taconite Co.

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Employees can file a class action suit against an employer that reasonably should have known about hostile environment sexual harassment but failed to take action

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Oncale v. Sundowner Offshore Services

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8 man crew, oncale is called homophobic slurs, subjected to sexual humiliation, touched inappropriately. Court rules in his favor that Title Vii can protect harassment because of sex even if the harasser and the harassed are of the same sex.

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Faragher v. City of Boca Raton

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Lifeguards harassed by supervisors. Found to be severe and pervasive enough to alter conditions of employment. City held liable for harassment by supervisory employees.

Employer subject to vicarious liability for hostile environment created by supervisor. Defenses: employer exercised reasonable care, or employee unreasonably failed to use available remedies

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Nichols V. Azteca Restaurants

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Sex stereotyping is discrimination on the basis of sex (man who carries his tray in an effeminate way and is accused of being gay, harassed by coworkers because he is male and acting out of accordance with gender roles)

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Alexander v. Yale University

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the first use of Title IX in charges of sexual harassment against an educational institution.[1] It further established that sexual harassment of female students could be considered sex discrimination, and was thus illegal.(wikipedia)

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Franklin v. Gwinnett County Public Schools

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the Supreme Court determined for the first time that a high school student who was allegedly subjected to sexual harassment and abuse could seek monetary damages under Title IX for alleged intentional gender-based discrimination

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Davis v. Monroe County Bd. of Educ.

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Under title IX a school can be liable for damages if it acts with "deliberate indifference" towards known acts of peer-on-peer harassment

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Gebser v. Lago Vista Indep. Sch. Dist.

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When a teacher is abusing a student, the institution isn't responsible unless someone with enough authority to implement corrective action knew about it and acted with deliberate indifference

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Dicenso v. Cisneros (housing case)

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One incident of landlord offering to exchange sex for rent and touching tenant's arm inappropriately

A claim of harassment in a housing situation is only punishable if it is severe and pervasive enough to unreasonably interfere with use and enjoyment of the premises.

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Krueger v. Cuomo (housing case)

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Landlord harasses tenant, when she rejects him he continues harassment, makes living there untenable, becomes hostile when she files harassment claim, she is forced to move out.

He is found guilty because he made her tenancy impossible, attempts to evict her after offering to exchange sex for rent were considered quid pro quo.

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Historical examples of sexual harassment

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Slavery: harassment because of entitlement, sexual dominance, personal pleasure, and to discipline female workers. profit, pleasure, punishment. sexual abuse targets black women workers to keep them "sexual hostages". Divided women, white plantation women also may have abused slave women. sexual subordination in the workplace is a central tool of labor, sexual, and racial control.

Louisa May Alcott
Harriet Jacobs

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The movement against sexual harassment

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Lead by black and working class women. Grassroots groups, speak-outs, legal scholarship

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Catharine MacKinnon

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Subordination theory
Defined sexual harassment as sex discrimination under Title VIII