Development of Sexual Harassment Law
1964…
The Civil Rights Act of 1964 becomes law. Title VII prohibits employment discrimination on the basis of race, color, religion, national origin, and sex. There is no mention of sexual harassment in the law or its legislative history.
1974…
A female employee claims she was retaliated against for rejecting her boss’s sexual advances. There was no sex discrimination, a trial court decides. The male supervisor, the court says, merely solicited his subordinate because he found her “attractive” and then retaliated because he felt “rejected.” Barnes v. Train, 13 FEP Cases 123 (D.D.C.)
1976…
The humiliation and termination of a female employee by her male supervisor because she rejected his sexual advances, if proven, would be sex discrimination, a court rules, because it was an artificial barrier to employment placed before one gender and not the other. Williams v. Saxbe, 413 F. Supp. 654, 12 FEP Cases 1093 (D.D.C.)
1977…
Reversing the 1974 Barnes v. Train case, appealed under a different name, U.S. appeals court rules that a female employee was retaliated against for rejecting sexual advances of her boss; this is sex discrimination in violation of Title VII. Barnes c. Costle, 561 F.2d 983, 15 FEP Cases 345 (D.C. Cir.)
1980…
The Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII, issues guidelines interpreting the law to forbid sexual harassment as a form of sex discrimination. 29 C.F.R. §1604.11
1981…
For the first time a U.S. court endorses the EEOC’s position that Title VII liability can exist for sexual insults and propositions that create a “sexually hostile environment,” even if the employee lost no tangible job benefits as a result. Bundy v. Jackson, 641 F.2d 934, 24 FEP Cases 1155 (D.C.Cir.)
1983…
An employer that forbade sexual harassment is held liable for the sexist name-calling of a female air traffic controller because it failed to take corrective action when the employee complained. Katz v. Dole, 709 F.2d 251, 31 FEP Cases 1521 (4th Cir.)
1985…
Physical violence can be sexual harassment, U.S. appeals court says, even if the conduct is not overly sexual: all that is necessary is that the unwelcome conduct be on the basis of the victim’s gender. McKinney v. Dole, 765 F.2d 1129, 38 FEP Cases 364 (D.C. Cir)
1986…
Addressing the sexual harassment issue for the first time, U.S. Supreme Court rules that a women who allegedly had sex with her boss a number of times, because she feared losing her job if she did not, could sue for sexual harassment. The question is not whether the employee’s conduct was voluntary but whether the boss’s conduct was unwelcome, the Court explains. An employer can be held liable for sexual harassment committed by supervisors if it knew or should have known about the conduct and did nothing to correct it, the Court adds. Meritor Savings Banks v. Vinson, 477 U.S. 57, 40FEP Cases 1822
1988…
When male construction workers hazed three female colleagues, even if the conduct was not specifically sexual in nature, it was gender-based harassment prohibited by the law, a U.S. appeals court finds. Hall v. Gus Construction Co., 842 F.2d 1010, 46 FEP Cases 57 (8th Cir.)
1990…
The EEOC issues a policy statement saying that sexual favoritism can be sexual harassment. Isolated incidents of consensual favoritism do not violate Title VII, but sexual favoritism does violate the law if advances are unwelcome or favoritism is so widespread that it has become an unspoken condition of employment, the EEOC says.
1991…
A sexually hostile environment violating Title VII is found where women were a small minority of the work force and crude language, sexual graffiti, and pornography pervaded the workplace. Title VII is “a sword to battle such conditions,” not a shield to protect preexisting abusive environments, the court declares. Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 57 FEP Cases 971 (M.D. Fla.)
A court finds that because male and female sensibilities differ, the appropriate standard to use in sexual harassment cases is that of a “reasonable women” rather than a “reasonable person.” The conduct in question – a man’s unsolicited love letters and unwanted attention might seem inoffensive to the average man, but might be so offensive to the average woman that creates a hostile environment, the court rules. Ellison v. Brady, 924 F.2d 872, 54 FEP Cases 1346 (9th Cir.)
The Senate Judiciary Committee conducts hearings on the nomination of Judge Clarence Thomas to Associate Justice of the United States Supreme Court. One Issue is whether, while he was chairman of the EEOC Thomas sexually harassed a female assistant Anita Hill. The alleged conduct occurred in private, Hill did not officially report it, and she continued to see Thomas even after she changed jobs. Although some Senator’s believed Hill’s charges, the Senate gave Thomas a seat on the Court. The hearings brought the issue of workplace sexual harassment out in the open and sparked debate over just what harassment is and what should be done about it
The Civil Rights Act of 1991 becomes law, providing for jury trials and for increased damages in Title VII.
1992…
Sexual harassment returns to front-page status with reports of the Navy’s Tailhook scandal. The Navy investigated allegations that women attending a convention of naval personnel at a Las Vegas hotel were forced to run through a gauntlet of male personnel and subject themselves to unwelcome touching. The investigation led to the discipline of several high-ranking naval officers for permitting the situation to occur.
1993…
In its second decision on sexual harassment in employment, the Supreme Court rules that a discriminatorily abusive work environment is unlawful even if it does not affect an employee’s psychological well-being. It is enough if (1) the employee subjectively perceives a hostile work environment as a result of gender-based conduct and (2) the conduct was severe or pervasive enough to create an objectively hostile environment -- one that a reasonable person would find hostile. Harris v. Forklift Systems, 114 S. Ct. 367, 63 FEP Cases 225
A mining company in northern Minnesota is found liable in the first successful sexual harassment lawsuit by a class of 100 women victimized by sexual harassment. Jensen v. Eveleth Taconite Co., 61 FEP Cases 1252 (D. Minn.)
The fact that a woman posed nude for two motorcycle magazines does not affect her claim that she found workplace conduct to be offensive, she acquiesced to unwanted sexual advances at work. Burns v. McGregor Electronics Industries, 968 F.2d 959, 61 FEP Cases 592 (8th Cir.)
1994…
In its third case involving sexual harassment in employment, the Supreme Court holds that provisions of the Civil Rights Act of 1991 regarding jury trials and damages do not apply to cases that arose before the 1991 Act took affect. Landgraf v. USI Film Products, 64 FEP Cases 820
A state high court rules that an employee who quits then sues for “constructive discharge” (to hold the employer responsible for terminating employment even though the employee quit) must prove tat the employee informed the employer if intolerable conditions and gave it a chance to correct them before resignation. Turner v. Anheuser-Busch, Inc. 7 Cal. 4th 1238, 1248-50 (Cal.)
1995…
The Congressional Accountability Act makes Congress itself comply with workplace standards it has imposed on other employers and creates an office of compliance to enforce those standards, including prohibitions against sexual harassment, for the benefit if the thousands of employees of Congress and related legislative agencies. 2 U.S.C. §§ 1301-1438
A federal district court dismisses the reverse discrimination suit of a male supervisor who was fired for participating in an office party in which a female subordinate received as a birthday gift. The court holds it was not discriminatory for the male supervisor to be held to a higher standard as to conduct that led to only a “slap on the wrist” for the female subordinate. Castleberry v. Boeing Co., 880 F. Supp. 1435 (D. Kan.)
1996…
A federal court upholds the dismissal of a manager who was fired for disregarding his boss’s order not to discuss an ongoing sexual harassment investigation with other employees. The court rejects the manger, in discussing the investigation with another employee, had been engaged in activity protected by the law. Morris v. Boston Edison Co., 942 F. Supp. 65 (D. Mass.)
A federal court upholds the dismissal of a female employee who made unfounded harassment charges against a male manager after their romantic relationship had ended. The court rejects her argument that the company discriminated against her on the basis og gender by treating her more harshly than her ex-boyfriend. Cerwinski v. Insurance Services Office, 1996 WL 563988 (S.D.N.Y.)
A federal court throws out a sexual harassment claim based on a handful of sexually suggestive comments made over a three-month period. This behavior was not severe or pervasive enough to be unlawful harassment, even though the victimized employee subjectively perceived the behavior as harassing. McKenzie v. Illinois Department of Transportation, 92 F.3d 473, 167 Daily Lab. Rep. (BNA) E-1 (7th Cir.)
1997…
A U.S. appeals court rules that an employer need not always investigate, in a case of relatively mild verbal harassment posing no imminent threat of harm, where the complainant admittedly asked the employer to do nothing and keep the matter confidential. Torres v. Pisano, 73 FEP Cases 1771 (2d Cir.)
A U.S. appeals court rules that where an employer has an effective and well-disseminated policy against sexual harassment, the employer cannot be held liable for hostile environment harassment unless the victim reports the harassment under the policy and the employer fails to remedy it; the company’s knowledge of harassment will not be presumed even if the harassment is pervasive. Farley v. American Cast Iron Pipe Co., 74 FEP Cases 217 (11th Cir.)
A U.S. appeals court rules that a sexual harassment investigation need not be perfect and that the employer need not take the action the complainant suggests, so long as the action is reasonably calculated to prevent harassment. Knabe v. Boury Corp., 73 FEP Cases 1877 (3d Cir.)
1998…
The California Supreme Court Rules that an employer would have had “good cause” to fire an employee for sexual harassment even though a jury had ruled that the alleged misconduct did not occur, so long as the employer reached a conclusion “supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” Cotran v. Rollins Hudig Hall Int’l Inc., 75 FEP Cases 1074 (Cal.)
In its fourth case on sexual harassment in employment, the Supreme Court holds that men as well as women can bring sexual harassment claims and that Title VII applies to “same-sex” harassment. An oil platform worker alleged that male co-workers subjected him to sexual assaults and threatened him with rape. He quit and sued the company for failing to stop this conduct. The court holds that even though Title VII does not specifically protect men from gender-based harassment by other men, the general principles of sex discrimination and harassment do apply to that conduct. This does not mean that Title VII creates a “general civility code for the American workplace,” for “social context,” and “common sense” will still control whether particular gender-based conduct is severe enough to create a hostile environment for a reasonable person under the circumstances. Onacle v. Sundowner Offshore Services, Inc., 76 FEP Cases 221
In its fifth and sixth cases addressing sexual harassment in employment, the Supreme Court creates a new rule for employer liability where a supervisor creates a hostile environment for s subordinate. Under this rule, an employer is liable for an actionable hostile environment created by a supervisor who has immediate (or successively higher) authority over the victimized employee if the harassment results in a tangible employment action, or a denial of promotion. The employer is also liable for a hostile environment created by a supervisor even where no tangible employment action has occurred, unless (1) the employer has taken reasonable care to prevent and correct sexual harassment, and (2) the employee unreasonably has failed to avoid harm. Proof that an employee failed to use the employer’s complaint procedure usually will be enough to show an unreasonable failure by the employee to avoid harm. Burlington Indus v. Ellerth, 77 FEP Cases 1; Faragher v. City of Boca Raton, 77 FEP Cases 14
1999…
To give an employer adequate notice of sexual harassment by a co-worker, the complaining employee must provide “enough information to raise a probability of sexual harassment in the mind of a reasonable employer.” It is not enough simply to say that a co-worker is “staring” or “name-calling” or that he will not leave the complainant alone. Kunin v. Sears Roebuck & Co., 175 F. 3d 289, 79 FEP Cases 1350 (3d Cir.)
A female police officer was able to win a sexual harassment suit by relying, in part, on conduct she never witnessed, including harassment of other women and private “locker-room” talk by male police officers who used vulgar words to describe women. The court reasons this evidence was relevant to show the female officer was targeted for abuse because of her gender, and to show that the employer knew that its anti-harassment policy was ineffective. Hurley v. Atlantic City Police Dept., 174 F.3d 95, 79 FEP Cases 808 (3d Cir.)
A sexually harassed schoolteacher lost her case under the Ellerth/Faragher rule, because she misled investigators and did not report all the harassment that had occurred when she was interviewed. Scrivener v. Socorro Indep. Sch. Dist., 169 F.3d 969, 79 FEP Cases 429 (5th Cir.)
A male employee can sue for sexual harassment on the basis of gross behavior by his male co-worker even if the harasser is also vulgar to a female co-worker, even if much of his conduct is not sexual, and even if he is not gay. In so ruling, a U.S. appeals court reasons that pervasive harassment is actionable if the words and conduct of the harasser imply he is motivated by the victim’s gender. Shepard v. Slater Steels Corp., 168 F.3d 998, 79 FEP Cases 311 (7th Cir.)
Responding to a complaint that a male employee made crude sexual remarks to a female subordinate, an employer avoided liability for sexual harassment by promptly giving him a written reprimand, suspending him without pay for a week, and bringing the harassment to a complete halt. A U.S. appeals court holds that this action was appropriate under the circumstances. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 78 FEP Cases 1527 (5th Cir.)
2000…
The need to show unwelcome conduct
A female sales representative who’s alleged foul sexual language lost her case because she herself used this type of language around co-workers and thus failed to show unwelcomeness. Hocevar v. Purdue Frederick Co., 216 F.3d 745 (8th Cir.)
A female employee alleging unwelcome sexual advances lost her case when witnesses testified she seemed to enjoy spending time with the alleged harasser. Stephens v. Rheem Mfg. Co., 220 F.3d 882, 886 (8th Cir.)
The need to show gender basis
A truly bisexual harasser does not act on the basis of gender, according to a U.S. appeals court. A husband and wife thus lost their case even though their joint supervisor solicited sex from both of them; an “equal opportunity harasser” does not discriminate because of gender. Holman v. Indiana, 211 F.3d 399 (7th Cir.)
According to one controversial U.S. appeals court opinion, foul language did not support a sexual harassment claim where the language was used in front of and to describe both men and women. Hocevar v. Purdue Frederick Co., 216 F.3d 745 (8th Cir.)
Soured romance not necessarily a case of sexual harassment
While soured office romances often do lead to claims of sexual harassment, the “fact that two people do not get along after their office romance sours is not sexual harassment,” a U.S. appeals court rules. Place v. Abbott Labs., 215 F.3d 803 (7th Cir.)
A female harassed by her male co-worker after their consensual sexual relationship went sour did not suffer gender-based harassment; rather, the harassment showed “contempt” as a result of the “failed relationship.” Succar v. Dade County Sch. BD., No.99-13681 (11th Cir.)
Sexual content not necessary to show gender basis
A female employee won her case of sexual harassment because the unwelcome conduct -- including sabotage of work and personal isolation was based on animosity towards her because of her gender, even though it was not sexually explicit. Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933 (6th Cir.)
Employers must take effective remedial measures, and can be responsible for non-employee’s conduct
A sexual harassment plaintiff prevailed where the employer failed to investigate allegations of co-worker harassment, and was liable even for behavior by non-employees, because employees encouraged the harassment. Slayton v. Ohio Dept. of Youth Serv., F.3d 669 (6th Cir.)
A female employee was permitted to pursue her sexual harassment claim even though the employer transferred her to end the harassment, because her new location was inconvenient and arguably left her worse off; remedial measures that make the victim worse off are necessarily “ineffective.” Hostetler v. Quality Dining, Inc., 218 F.3d 789, 810-11(7th Cir.)
An employer prevailed against a female electrician whose male co-workers harassed her, because the employer investigated promptly, redistributed the sexual harassment policy, and offered transfer to a different department. This response was reasonably given (a) the time elapsed between notice and response, (b) the options available to the employer, (c) the disciplinary steps taken, and (d) that the response ended the harassment. Stuart v. GMC, 217 F.3d 621, 633 (8th Cir.)
Employee must use avenues available
A male employee lost his case because his “off the record” discussion did not imply sexual harassment and he endured 15 unwelcome sexual propositions before finally reporting. Casiano v. AT&T Corp., 213 F.3d 278, 286-87 (5th Cir.)
An employee lost her case because of her anonymous letter of complaint, which she then disavowed, was not a reasonable use of the sexual harassment policy. Hill v. American General Fin., 218 F.3d 639,643 (7th Cir.)
Female store clerks lost their case because they failed to use designated avenues to complain to the designated person, and also failed to reasonably use Open Door Policy because they did not fully inform managers of harassment or request that action be taken. Mandray v. Publix Supermkts., Inc., 208 F.3d 1290, 1300 (11th Cir.)
A female employee lost her case because she assured supervisors that everything was fine and did not seek reassignment for herself or the harasser. Coates v. Sundor Brands, 164 F.3d 1361 (11th Cir. 1999)
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