Concepts, Definitions, and Policies Surrounding Workplace Sexual Harassment
Sexual Harassment is dependent on interpersonal interactions in the workplace. In order for sexual harassment to occur certain social factors must be present on the macro, meso and micro-levels. The factors at the micro-level include markers of social identity like gender, race, sexual orientation. Women most frequently experience sexual harassment. The other micro-level category of race that plays a great influence in harassment cases is race [4]. For example, black women are three times more likely to experience sexual harassment or assault at work [2].
The meso-level factors of sexual harassment occur in a group or one-on-one environment [3]. A common form of harassment to occur at the meso-level is quid pro quo harassment. Quid pro quo sexual harassment, recognized by the Supreme Court in Title XII, is any form of harassment that may not result in a “tangible job consequence” but results in an “environment in which harassment was sufficiently pervasive to change the terms or conditions of employment” [5]. Sexual humor, a quid pro quo behavior, is the most common form of sexual harassment in the workplace and can be either sexist or non-sexist depending on how much gender roles play into the content of the joke [6].
Although fictional, Michael Scott from the mockumentary television comedy The Office exemplifies the use of humor that is considered harassment in the workplace. In the season 2 episode aptly named “Sexual Harassment” the HR representative Toby is required to present a forum on workplace harassment. Michael laments at the idea of Toby telling the employees that Michael’s email chains filled with offensive and obscene content are not allowed. Michael then goes on a spree of offensive and sexual jokes trying to prove they are in the name of good comedy. As a result, the Vice President Jan has a meeting with Michael telling him he has to stop making inappropriate jokes. After Michael announces his “retirement from comedy” he is baited by an employee into telling his signature “that’s what she said” joke to the dismay to everyone around [7]. This exemplifies a quid pro quo harassment through humor because Michael creates a hostile work environment for those around him by making an obscene joke. Although his intent is not to make anyone provide him with a sexual favor the implications and the content of the joke is inherently sexual and would have legal standing for a harassment case under Title XII.
The macro-level factors of sexual harassment are factors that “operate on the societal and industry level” [4]. At the macro-level, systemic structures like human relations will influence how sexual harassment is addressed in the workplace, or even if it is addressed at all. Although HR is meant to serve the employee, they are the company’s first line of defense against harassment lawsuits. Women who face sexual harassment in the workplace are “much more likely to come up with their own solution—such as avoiding the harasser, downplaying the harassment, or simply enduring it—than to seek help from HR. They are far more likely to ask a family member or co-worker for advice than to file a complaint, because they fear that they will face repercussions if they do” [1]. The HR system itself is not a cause of sexual harassment but has proven ineffective in preventing it.
There have been two monumental court cases regarding workplace sexual harassment. The first is Meritor Savings Bank, FSB v. Vinson in 1978. In 1974 Mechelle Vinson started working for Meritor Savings Bank and quickly climbed the corporate ranks from teller to the assistant branch manager. After her probation period ended she revealed that the assistant vice-president had assaulted and raped her. Vinson also states she was coerced into other sexual acts out of fear of loosing her job if she did not comply. Her case ultimately was heard before the U.S. Supreme Court where they officially recognized sexual harassment as a form of sex discrimination under Title XII of the Civil Rights Act of 1964. They noting that, “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminates' on the basis of sex." Furthermore, the Supreme Court makes it clear that the standard for determining harassment is “unwelcomeness” rather than “voluntariness” and that plaintiff should not be discredited if she chooses not to utilize the company’s complaint system to report sexual harassment [2].
Jenson v. Eveleth Taconite Co. exposed sexual harassment for women working blue collar jobs. Lois Jenson began working in the coal mine in Minnesota in the mid-70s once women were allowed to work in the field. The women in the mines started experiencing sexual harassment and backlash from their male colleagues almost immediately. After many years of trying, Lois Jenson successfully launched her lawsuit in 1988. Considered the first ever class action sexual harassment lawsuit, the claims focused on large scale harassment like sexually graphic images, explicit conversations, and overall hostility throughout the mine. The case also included shocking instances of individual accounts of harassment. Jensons’s case was not certified until 1991 and was aided in publicity with Anita Hill’s case taking place at the same time. Jenson v. Eveleth was finally settled in 1998 after ten years of hearings [5].
References:
4.Cunningham, George B., Mindy E. Bergman, and Kathi N. Miner. "Interpersonal Mistreatment of Women in the Workplace." Sex Roles 71, no. 1-2 (07, 2014): 1-6. doi:http://dx.doi.org.mutex.gmu.edu/10.1007/s11199-014-0398-0. https://search-proquest-com.mutex.gmu.edu/docview/1550484511?accountid=14541
5.Hart, Melissa. "Litigation Narratives: Why Jenson v. Ellerth Didn't Change Sexual Harassment Law, but Still has a Story Worth Telling." Berkeley Women's Law Journal 18, (Jan 31, 2003): 282 . https://search-proquest-com.mutex.gmu.edu/docview/211483157?accountid=14541.
6.Otsri, Magi. "Non-Sexist Sexual Humor as Quid Pro Quo Sexual Harassment." Sexuality & Culture 24, no. 1 (02, 2020): 94-112. doi:http://dx.doi.org.mutex.gmu.edu/10.1007/s12119-019-09627-1 https://search-proquest-com.mutex.gmu.edu/docview/2248796271?accountid=14541.
7.The Office, season 2, episode 2, “Sexual Harassment” written by B.J. Novak, aired September 27, 2005, on NBC, https://www.netflix.com/watch/70069634?trackId=200257859