Sex discrimination and sexual harassment are prohibited by Title VII of the Civil Right to Act of 1964. Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual because of such individual’s… sex…” Although sexual harassment is not specifically prohibited within the actual body of Title VII, the U.S. Supreme Court has ruled that sexual harassment is a form of unlawful sex discrimination under the meaning and legislative intent of Title VII.
Historically, there were two basic types of sexual harassment: (1) quid pro quo, which involves a proposition for the exchange of sexual favors in return for employment, promotion, or as a condition of continued employment; and (2) hostile work environment. Quid pro quo involves situations in which a supervisor, for example, offers tangible job benefits to the employee in exchange for some form of sexual access or favors to the employee or situations where a supervisor threatens some kind of tangible job detriment to the employee if the employee does not comply with the requests.
Hostile work environment is a little less straightforward than quid pro quo sexual harassment as the issue of the employee’s job benefit or detriment does not come into play. In order to prove a hostile work environment, an employee must show: (1) membership in a protected group; (2) that he/she was subjected to unwelcome harassment; (3) there was a causal connection between the harassment suffered and the individual’s membership in the protected group; and, (4) the harassment was sufficiently severe or pervasive to effect a term, condition, or privilege of employment. Although the conduct complained of is often directly sexual in nature, nonsexual conduct may also be actionable if it is conduct directed to the employee because of his/her gender. An example of such nonsexual conduct would be a supervisor calling women employees vulgar and demeaning names, but not doing so to men employees. The key test for determining whether or not the conduct complained of constitutes a hostile work environment often turns on the issue of how severe or pervasive the employer’s conduct was.
Employers can be held vicariously liable for a supervisor’s harassment and courts have required employers to exercise reasonable care in preventing and correcting sexually harassing behavior in a prompt manner. Accordingly, many employers institute standard sexual harassment prevention programs and policies.
The courts have more recently provided further guidance and have distinguished between cases where a threat of adverse employment action has been made and has actually been carried out and cases where an adverse employment action has not been carried out. Where a threat of adverse employment action has been carried out by the employer (quid pro quo), the employer is vicariously liable for the actions of at least its supervisors and agents.
If the threat of adverse employment action has not been carried out, on the other hand, yet the employee or victim of the harassment has experienced a hostile environment, the employer may have an affirmative defense to the sexual harassment claim, if it can prove:
1) The employer exercised reasonable care to prevent and correct any sexually harassing behavior in a prompt manner and the employer has policies and procedures in place to do so; and
2) The employee or victim unreasonably failed to take advantage or any preventive or corrective opportunities provided by the employer, such as a complaint or grievance procedure, or the employee otherwise failed to attempt to avoid the harm.