Sexual harassment in city government Silva, Julia M; Kleiner, Brian H. Equal Opportunities International20. 5-7 (2001 ): 82-87.

Turn on hit highlighting for speaking browsers Hide highlighting Abstract (summary) Translate Abstract Implementing effective measures to combat sexual harassment and effective measur es to deal with sexual harassment cases when they occur, will limit an agency's liability in the eyes of the law. This should be done in accordance with the Equ al Employment Opportunity Commission's Policy Guidance Memorandum, which states that an effective programme should include express prohibitions against sexual h arassment that are clearly and regularly communicated to employees and effective ly implemented. It is in the best interest of city governments to develop a sexu al harassment policy. Since government agencies are entrusted with the managemen t of public funds, ultimately, protecting public employees form sexist behaviour and the public agency from sexual harassment charges simply reflects good manag ement sense and responsiveness to their constituents. What is Sexual Harassment? Sexual harassment at work occurs whenever unwelcome conduct on the basis of gend er affects a person's job. Title VII of the Civil Rights Act of 1964, as amended , is the federal statute that guarantees protection under the law. Sexual harass ment is defined by the Equal Employment Opportunity Commission (EEOC) as "unwelc ome sexual advances, requests for sexual favours, and other verbal or physical c onduct of a sexual nature when: * submission to such conduct is made either explicitly or implicitly a term or c ondition of an individual's employment, or * submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or * such conduct has the purpose or effect of unreasonably interfering with an ind ividual's work performance or creating an intimidating, hostile, or offensive wo rking environment" (Tang, 1996). Two Kinds of Sexual Harassment Quid Pro Quo - Under the law, there are two basic kinds of sexual harassment. Th e first is when a supervisor or someone else with authority over the victim make s a "put out or get out" demand - "submit to my sexual requests or you will be f ired, demoted, intimidated, passed over for a promotion, or in some other way ma de miserable on the job". This type of sexual harassment is called quid pro quo, meaning "this for that", and can be committed only by someone in the organisati onal structure who has the power to control the victim's job destiny (Ban, 1997) . Sexually Hostile Environment - The second kind of sexual harassment is called "h ostile environment". A supervisor, co-worker, or someone else with whom the vict im comes in contact on the job, creates an abusive work environment or interfere s with the employee's work performance through words or deeds because of the vic tim 5 gender. A sexually hostile work environment can be created by: discussing sexual activities; unnecessary touching; commenting on physical attributes; disp laying sexually suggestive pictures; using demeaning or inappropriate terms, suc h as "Babe"; using unseemly gestures; ostracising workers of one gender by those of the other; granting job favours to those who participate in consensual sexua l activity; or, using crude and offensive language.

Hostile work environment cases are the most difficult type of sexual harassment to recognise. The particular facts of each situation must be looked at closely t o determine whether the offensive conduct has "crossed the line" to unlawful gen der discrimination (Strickland, 1995). Sexual Harassment Case Law Title VII applies to both public and private employers and an examination of the EEOC's "Policy Guidance on Current Issues of Sexual Harassment" and the case la w that has shaped the issue of sexual harassment (Robinson, et.al., 1993) is not particular to either the public or the private sector. It is, therefore, import ant for all employers to pay close attention to any new developments of the law as well as court decisions that may affect the issue of sexual harassment in the workplace. Sexual harassment is one of the most problematic issues in the Ameri can workplace and one that has captured much media attention following a number of high-profile lawsuits and congressional hearings. This increased awareness, a long with several landmark developments such as the availability of damages unde r the Civil Rights Act of 1991, has led to an astronomical rise in sexual harass ment lawsuits. Yet, sexual harassment law is often still misunderstood, to the p oint that some federal appeals courts have characterised it as "chaotic", and ha ve asked for Supreme Court direction (Achampong, 1999). An examination of sexual harassment case law and how it has progressed through t he years, follows: In the early 1970's the Courts were reluctant to fmd actionable sexual harassmen t cases. For example, in 1974 (Barnes v. Train, 13 FEP Cases 123 (D.D.C.)), when a female employee claimed that she was retaliated against for rejecting her bos s's sexual advances, a trial court decided that there was no sex discrimination. The Court ruled that the male supervisor's sexual advances towards his female s ubordinate were because he found her attractive and his retaliation against her was because he felt rejected. In 1975, former female employees charged that their male supervisor forced them to quit with his offensive sexual advances (Come v. Bausch & Lomb, Inc. 390 F. S upp. 161, 10 FEP Cases 289). This is not sex discrimination, a court found, only a personal urge of the supervisor, "a personal proclivity, peculiarity, and man nerism" that was totally unrelated to the nature of the employment and therefore did not violate Title VII. In 1976, the humiliation and termination of a female employee by her male superv isor because she rejected his sexual advances, if proven, would be sex discrimin ation, a court rules, because it was an artificial barrier to employment that wa s placed before one gender and not the other. Williams v. Saxbe, 413 F. Supp. 65 4, 12 FEP Cases 1093 (D.D.C.). In 1977, the 1974 Barnes v. Train case was appealed under a different name (Barn es v. Costle, 561 F.2d 983, 15 FEP Cases 345 (D.C.Cir.)), and the appellate cour t ruled that if a female employee was retaliated against because she rejected th e sexual advances of her boss, this is sex discrimination in violation of Title VII. Shortly, thereafter, in 1980, the EEOC issued guidelines declaring sexual h arassment a violation of Section 703 of Title VII of the Civil Rights Act of 196 4. Further, the EEOC established criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment, defined the circumstances und er which an employer may be held liable, and suggested affirmative steps an empl oyer should take to prevent sexual harassment. These Guidelines have been applie d by the EEOC in its enforcement litigation, and many lower courts have relied o n the Guidelines when considering sexual harassment cases (29 C.F.R. $1604.11). In 1981, for the first time, a federal appeals court endorsed the EEOC's positio

n that Title VII liability can exist for sexual insults and propositions that cr eate a "sexually hostile environment" even if the employee did not lose any tang ible job benefits as a result. Bundy v. Jackson, 641 F.2d 934, 24 FEP Cases 1155 (D.C. Cir.). In the same year, a federal district court decides that firing a m ale employee because he rejected the sexual advances ofhis male supervisor viola tes Title VII. The discrimination was based on the employee's gender because a s imilarly situated woman would not have had sexual demands made of her, the court decides. Wright v. Methodist Youth Services, 511 F. Supp. 307, 25 FEP Cases 563 (N.D. III). In 1983, an employer that had a policy forbidding sexual harassment was held lia ble for the sexist namecalling of a female air traffic controller because it fai led to take corrective action when the employee complained. Katz v. Dole, 709 F. 2d 251, 31 FEP Cases 1521 (4th Cir.). The issue ofwhether sexual harassment violates Title VII reached the Supreme Cou rt for the first time in 1986 in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 ,40 EPD 36,159 (1986). In this case, the Court affirmed the basic premises of th e Guidelines and the Commission's definition of sexual harassment. The Supreme C ourt's decision in Vinson established that both types of sexual harassment are a ctionable under Section 703 of Title VII of the Civil Rights Act of 1964, as for ms of sex discrimination. In Vinson, the court ruled that a female employee who had sex with her boss a nu mber of times because she was afraid of losing her job if she did not, could sue for sexual harassment. The question is not whether the employee's conduct was v oluntary but whether the boss's conduct was unwelcome, the Court said. An employ er can be held liable for sexual harassment committed by its supervisors if it k new, or should have known, about the conduct and did nothing to correct it. In 1 990, the EEOC issued a policy statement saying that sexual favouritism is a form of sexual harassment; it takes the position that isolated incidents of consensu al favouritism do not violate Title VII. Sexual favouritism violates the law whe n the advances are unwelcome or the favouritism is so widespread that it has bec ome an unspoken condition of employment. In a 1991 case, a court found that male and female sensibilities differ and the appropriate standard to use in sexual harassment cases is that of a "reasonable woman" rather than a "reasonable person". The conduct in question - unsolicited love letters and unwanted attention - might appear so offensive to the average w oman as to create a hostile working environment, the court ruled. Ellison v. Bra dy, 924 F.2d 872, 54 FEP Cases 1346 (9th Cir.). Also in 1991, the Senate Judiciary Committee conducted hearings on the nominatio n of Judge Clarence Thomas to Associate Justice ofthe United States Supreme Cour t. At issue was whether, while he was chairman of the EEOC, Thomas sexually hara ssed his assistant, Anita Hill. The alleged conduct occurred in private, Hill di d not report it, and she continued to freely associate with Thomas even after sh e changed jobs. Although some senators believed Hill's charges, the Senate never theless voted to give Thomas a seat on the Court. The hearings brought the issue of workplace harassment out in the open, however, and began an ongoing debate b etween men and women over just what harassment is and what should be done about it. And, also in 1991, the Civil Rights Act of 1991 became law. Among its provisions is an amendment, codified as 42 U.S.C. 1981 la, that provides for jury trials a nd increased damages when intentional discrimination prohibited by Title VII occ urs. Unlike cases of race discrimination brought under 42 U. S.C. 1981, the amou nt of damages in cases of sex discrimination brought under Title VII are limited by the number of employees within a company.

In Harris v. Forklift Systems, Inc. (510 U.S. 17,114 S. Ct. 367, 126 L.Ed. 2d. 2 95 (1993)), the Court held that conduct can be actionable as "abusive work envir onment" harassment, even where it does not seriously affect an employee's psycho logical well-being or lead the employee to suffer injury. This decision has made it considerably easier to substantiate hostile environment claims. New Developments Concerning Sexual Harassment in City Government What Have Cities Learned From Sexual Harassment Case Law? * Termination of an employee because she rejected supervisor's advances is sex d iscrimination; * Retaliation by supervisor towards employee who refuses his sexual advances or after employee has filed a sexual harassment complaint is illegal; * Sexually hostile environment is sex discrimination and poses Title VII liabili ty; * Same sex harassment is illegal, because it is based on employee's gender; * Employers who have policies in place may still be held liable for sexual haras sment if they fail to take corrective action when a complaint is made; * Employer is liable, if they knew, or should have known, about sexual harassmen t by coemployees or non-employees and did nothing to correct it; * Both types of sexual harassment are actionable, even in cases where the employ ee "voluntarily" acquiesces, as long as the supervisor's conduct is "unwelcome". Although the courts have, in the past years, as shown above, significantly incre ased the protection they have afforded victims of sexual harassment, it still co ntinues to be a serious issue both in the public sector as well as the private s ector. A recent U.S. MSPB Survey revealed that 44% of the women and 19% of the m en who responded had been harassed in some way during the previous two years. In a five-state study of state governments, 57% of the surveyed females reported e xperiencing some form of sexual harassment (Eberhardt, et. al., 1999). In view of the statistics shown above and the implications of the court decision s previously discussed, one would expect that all organisations (including city governments) would be keenly aware of the issue of sexual harassment, its possib le detriment to their workforces and the enormous negative financial impacts it may produce. One would further expect that all organisations (including city gov ernments) would be extremely proactive in instituting sexual harassment preventi ve measures, both to limit their liability as well as to ensure a productive wor kforce. However, the literature reviewed indicates a different reality. In a 1994 survey, 100% of the responding federal-level agencies reported having a sexual harassment policy, and, a study by Ross and England found that 78% of s tate governments had some type of sexual harassment policy (Eberhardt, et.al, 19 99). However, Eberhardt, et.al., indicated in their article that while there has been considerable investigation of sexual harassment in large firms and in the federal government, much less research has focused on smaller firms and governme nt units. The Study: Sexual Harassment in Small Government Units When Eberhardt, et.al., investigated small government units regarding the applic ation of sexual harassment policies and attitudes towards sexual harassment, the findings revealed that just over half of the sample had policies in place, and

that the existing policies did not consistently provide for any training. Eberha rdt's study further indicated that "while feelings of responsibility for employe e actions were prevalent, sexual harassment claims were not completely believed" . Eberhardt concluded that state and local government agencies need to more strenu ously establish effective sexual harassment policies and ensure that these polic ies are well-communicated to employees (Eberhardt, et. aL, 1999). (It is importa nt to note that the Eberhardt, et. aL, study included cities from only one Midwe stern state. The recommendations indicate that firther research should be conduc ted to ascertain whether the findings generalise to other states). Even allowing for Eberhardt's study results that showed that only "one actual se xual harassment complaint had been filed in the 68 government units studied", th is should not be interpreted as a lack of any problem. In fact, it is very possi ble that sexually harassing behaviours may be going unreported due to the lack o f an effective policy, and a lack of guidance about how to address the problem. City Governments Are Gendered Work Places Studies show that, although both genders are victims, at least one-half of Ameri can women have been sexually harassed at some time. Studies have also shown that harassing behaviours and attitudes are more prevalent in occupations which have been typically male. Skewed gender ratios prevail in many occupations typically performed by city government, such as municipal fire and police services, trans portation, sanitation, and maintenance. Further, public management studies point out that public workplaces are "gendered workplaces" (Rosell, 1995) and employe es in gendered workplaces, such as the ones described above, are particularly vu lnerable to sexual harassment. Thus, it follows that city governments should do all in their power to protect public employees from sexist behaviour and the pub lic agency from sexual harassment charges. This would simply reflect good manage ment sense (Rosell, 1995). Formal policies prohibiting sexual harassment are essential for integrating wome n into public agencies; and, implementing strategies for handling sexist attitud es in the workplace is critical and must be ongoing organisational commitments. Recommendations Strategies for combating sexism and sexual harassment in city government must be instituted in those organisations that have not yet done so. Strategies to comb at sexual harassment, whether newly instituted, or in those organisations that a lready have policies, must include the following dimensions: * Publicising management commitment through a policy statement that clarifies th e unacceptable behaviours, spells out the penalties and disciplinary process for violations, and holds supervisors responsible for conduct in their units throug h the performance appraisal system. * Efficient and responsible complaint channels that take allegations seriously, process them as violations of the law, protect the victim, and provide counselli ng for the involved parties. * Effective enforcement imposing penalties against the perpetrators and those wh o knowingly allow the behaviour. * Ongoing and all employees arassment and des them with required sexual harassment awareness training for supervisors and that educates them in how to keep the workplace free from sexual h how to handle and report complaints; and, just as important, provi opportunities for informally communicating and sharing their perce

ptions about appropriate behaviour between the genders in the workplace. * Periodic monitoring of the workplace through anonymous and confidential survey s of all employees with results posted, distributed, discussed in sexual awarene ss training sessions, and monitored by management (Rosell, 1995). * And, last, but not least, public agencies must also recognise the value of div ersity training as a tool in the prevention of sexual harassment since stopping sexual harassment can only be done when people work towards improving their comm unication with one another, respect each other's differences and realise that so mething they are doing may be offensive to others (Tang, 1996). Conclusion Since employers are totally liable for the acts of their supervisors, and may al so be liable for acts committed by fellow employees and even non-employees if th e employer knew, or should have known, of the conduct and failed to take appropr iate actions, City government must remain vigilant and very active in taking ste ps to develop programmes to prevent sexual harassment in the workplace. However, an examination of the literature on this subject negates this conclusion. Implementing effective measures to combat sexual harassment and effective measur es to deal with sexual harassment cases when they occur, will limit the agency's liability in the eyes of the law. This should be done in accordance with the EE OC's "Policy Guidance Memorandum" (1988), which states that an effective prevent ive programme should include express prohibitions against sexual harassment that are clearly and regularly communicated to employees and effectively implemented . There should also be internal procedures for receiving, investigating, and res olving sexual harassment claims. It is in the best interest of city governments to develop a sexual harassment policy (Robinson, 1993). Since government agencie s are entrusted with the management of public funds, ultimately, protecting publ ic employees from sexist behaviour and the public agency from sexual harassment charges simply reflects good management sense and responsiveness to their consti tuents. Failure to do so constitutes a violation of Title VII of the Civil Right s Act of 1964, as amended, and may result in hundreds of thousands, or even mill ions, ofpublic dollars spent on attomeys' fees and damages rather than on public services. Beyond the costs associated with legal fees and damages, there are also other hi gh expenses associated with sexual harassment. "The costs of replacing employees who had left their jobs because of sexual harassment, paying insurance claims f or employees who had sought professional help due to physical or emotional distr ess, and sick leave for those who missed work ... as well as the costs associate d with reduced productivity of the individuals and groups" (Tang, 1996), are all very real costs agencies must take into consideration when facing the issue of sexual harassment and the need to institute preventive measures. City government s must proactively address sexual harassment in the workplace in order to provid e the best public service possible to their citizens. References References References Archampong, Francis (1999), Workplace Harassment Law: Principles, Landmark Devel opments, and Framework for Effective Risk Management, Quorum Books: Connecticut. Ban,C., Riccucci, N. (1991), Public Personnel Management: Current Concerns, Futu re Challenges, Longman: New York. References

Eberhardt, B., Moser, S. and McFadden, D. (1999), "Sexual Harassment in Small Go vernment Units: An Investigation of Policies and Attitudes", Public Personnel Ma nagement, Vol. 28, No. 3, Fall, pp.351-364. Greenlaw, P., Kohl, J., Lee, Jr., R. , (1998), "Title Vii Sex Discrimination in the Public Sector in the 1990s: The C ourt's View", Public Personnel Management, Vol. 27, No. 2, Summer, pp.249-268. Klinger, D., Nalbandian, J. (1998), Public Personnel Management.- Contexts and S trategies, Prentice-Hall: New Jersey. References Robinson, R., Allen, B., Franklin, GC, Duhon, D., (1993), "Sexual Harassment in the Workplace: A Review of the Legal Rights and Responsibilities of All Parties" , Public Personnel Management, Vol. 22, No. 1, Spring, pp.123-135. Rosell, E., Miller, K., Barber, K., (1995), "Firefighting Women and Sexual Haras sment", Public Personnel Management, Vol. 24, No. 3, Fall, pp.339-350. References Spann, J., (1990), "Dealing Effectively with Sexual Harassment: Some Practical L essons From One City's Experience", Public Personnel Management, Vol. 19, No. 1, Spring, pp.53-69. Stanko, B., Miller, Cx, (1996), "Sexual Harassment and Government Accountants: A necdotal Evidence from the Profession", Public Personnel Management, Vol. 25, No . 2, Summer, pp.219-235. Strickland, R., (1996), "Sexual Harassment: A Legal Perspective for Public Admin istrators", Public Personnel Management, Vol 24, No. 4, Winter, pp.493-513. Tang, T., McCollum, S., (1996), "Sexual Harassment in the Workplace", Public Per sonnel Management, Vol 25, No. 1, Spring, pp.53-57. Thacker, R., Gohmann, S., (1993), "Male/Female Differences in Perceptions and Ef fects of Hostile Environment Sexual Harassment: "Reasonable" Assumptions?, Publi c Personnel Management, Vol. 22, No. 3, Fall, pp.461-472. Copyright Barmarick Press 2001