Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e, et seq.) prohibits covered employees from discrimination based on race, color, sex, religion or national origin. Title VII’s prohibition against sexual discrimination includes both sexual harassment and pregnancy discrimination. In the employment context, sexual harassment refers to unwelcome sexual advances imposed upon an employee by someone in authority. Such unwanted sexual advances may come in the form of sexual jokes, repeated offensive comments or looks, intentional body contact, indecent propositions or forced sexual relations.

Historically, sexual harassment claims were brought by way of a state cause of action for the intentional infliction of emotional distress or some related tort. This changed, however, in 1986 with the Supreme Court’s decision in Meritor Savings Bank v. Vincent, where in the U. S. Supreme Court held that sexual harassment claims could be brought under Title VII as a form of discrimination based on sex. In its decision, the Supreme Court adopted earlier Equal Employment Opportunity Commission (“EEOC”) guidelines which had placed sexual harassment within the various types of activity prohibited in the workplace.

Those types of activity included “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The EEOC guidelines provided that prohibited forms of sexual misconduct could constitute “sexual harassment, whether or not it is directly limited to the grant or denial of an economic quid pro quo where such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. Meritor Savings Bank v. Vincent, 477 U.S. 57, 65, 106 S.Ct. 2399 (1986).

In the Supreme Court’s view, the issue was whether or not the alleged misconduct was “unwelcome.” Thus, if an improper and welcomed sexual advance was made, and the victim voluntarily responded to it and engaged in some sexual conduct, the employer could still be liable for the unwelcome initial conduct. In other words, the employee’s voluntary participation in the ultimate or sexual relationship did not bar a cause of action so long as the initial conduct had been unwelcome.

Sexual harassment claims typically fall into one of two categories:

1. Quid pro quo; or
2. Hostile work environment.

Quid pro quo harassment occurs when an employee or prospective employee is forced to choose between an employment detriment and submitting to sexual demands. See Burlington Ind., Inc. v. Ellerth, 542 U.S. 742 (1998). To establish a prima facie case of quid pro quo sexual harassment, the plaintiff must show:

1. That she is a member of a protected class;
2. That she was the subject of unwelcome sexual harassment in the form of sexual advances or a request for sexual favors;
3. That the unwelcome harassment or advance was based on sex;
4. That submission to the unwelcome advance was an express or implied condition for receiving job benefits or that the refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and
5. That the employer was responsible for the supervisor’s conduct.

Hostile work environment occurs when unwelcome conduct of a sexual nature unreasonably interferes with an employee’s work performance or creates an intimidating work environment, regardless of whether the conduct is directly tied to a job benefit or detriment. In order to establish a prima facie case, an employee must prove:

1. That she belongs to a protected group;
2. That she was the subject of unwelcome sexual harassment;
3. That the harassment was based on sex;
4. That the harassment was sufficiently pervasive to effect a term, condition, or privilege of employment; and
5. That the employer knew, or should have known, about the harassment and failed to take prompt, corrective action.

Questions to be asked in sexual harassment claims are:

1. Was the verbal or physical conduct of a sexual nature;
2. If so, was it unwelcome; and
3. Was there a quid pro quo for the sexual conduct and/or a hostile work environment.

The EEOC guidelines prohibit conduct constituting:

1. Sexual advances;
2. Request for sexual favors;
3. Any verbal conduct of a sexual nature;
4. Any physical conduct of a sexual nature;
5. Written or visual sexual conduct; and
6. Vulgar, crude and sexist language.

In determining whether or not the alleged misconduct was so pervasive as to create a hostile work environment a two-tiered standard is applied. First, whether or not the alleged misconduct would have been offensive to the average reasonable woman; and second, whether the alleged misconduct was, in fact, offensive to the charging party.

Title VII prohibits sexual discrimination and sexual harassment. The EEOC has provided guidance for identifying conduct that may be considered discriminatory or harassment. If an employee is able to prove discrimination, they may be entitled to lost salary, punitive damages, and attorney’s fees. It would be advisable for employers to review their policies and practices to see that they do not run afoul of the EEOC and Title VII.

Wilton E. Bland, III
wbland@mblb.com