Sexual Harassment Law and Liability
This is the first of a three part series on the law of sexual harassment. In Part I, we will discuss the legal definitions and sources of liability for sexual harassment. Part II will cover institutional and personal liability, and Part III will discuss UNCG's policy and procedures.
What is sexual harassment?
In the broadest sense of the term, "sexual harassment" is a form of unlawful sex discrimination. More specifically it includes (1) unwelcomed demands for sexual favors by a supervisor or other person with power over the victim (e.g. a dissertation committee chair) in return for a benefit ["quid pro quo" harassment] and (2) conduct of a sexual nature committed by co-workers or students that makes the work or school environment hostile ["hostile environment" harassment].
The actual legal definition given by the Equal Employment Opportunity Commission (EEOC) reads as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
- 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 individual's work performance or creating an intimidating, hostile or offensive working environment.
The same definition applies to harassment in the academic environment by changing the words "employment" and "work" to "academic progress" "academic" or "classroom" as appropriate.
Can you give me some examples?
If a supervisor tells an employee "if you don't have sex with me I'll see that you never get promoted," or if a teacher tells his student "if you don't go out with me I'll see that you never do better than a 'C' in this class," then we have clear cases of "quid pro quo" (literally "this for that") sexual harassment. Also, if co-workers or students constantly tell dirty jokes, make "cat calls" display Playboy pinups, "undress females with their eyes," etc., then a hostile environment has been created.
Does it have to be that blatant?
No, the harasser is usually much more subtle and tends to imply things rather than say them outright. For example, in one case, a professor never actually threatened to give a female student lower grades, but the student who had been receiving all "As" saw her grades drop precipitously after she rejected an invitation for a date even though her work had not diminished in quality. In another case, male students complained that the professor gave all of her attention to the female students, and never seemed to have any time to mentor the men.
These cases are obviously much harder to investigate and prove because there is always some room for doubt. The professor can always argue that the student in the first example really wasn't progressing as she should. In the second example, the professor, may explain that the particular women simply needed more help.
It is also the case that some harassers don't realize that what they are doing is offensive. For example, a visiting lecturer from a foreign country constantly hugs his female students, tells them how attractive they are, and remarks that they will make men very happy. Such conduct may be perfectly acceptable in his home culture. That is why it is important to let that person know that what he is doing is offensive. Then, if he continues, a violation can be proven.
What types of sexual harassment complaints do you get most often at UNCG?
Generally speaking the most typical case involves a relationship that started "consensually" and then went bad. After the break up, one party starts to harass the other. These cases tend to mirror nasty divorce cases except that there is no divorce court to intervene. Harassers will use whatever tools are available to them. So, if the harasser has supervisory power over the victim, the harasser may misuse that power to commit "quid pro quo" harassment. If not, then hostile environment harassment e.g., annoying phone calls, letters, etc., is common. A very few cases progress to criminal levels, including stalking and assaults. We also occasionally see complaints about improper comments in the workplace and in classrooms.
It is important to note here that "consent" is a relative term. When the harasser has a great deal of power over the victim then one must question whether consent was freely given or was given only through fear of the consequences for rejecting the harasser's invitation. That is why the UNC System has chosen to prohibit ALL amorous relationships, "consensual" or not, between supervisors and subordinates or faculty and the students they teach or supervise. We will discuss that policy in more detail in Part II of this series.
Is telling one dirty joke 'sexual harassment'?
If it is told to or in the presence of a person with an intent to demean or harass that person because of their gender, then it is sexual harassment. However, a single comment or joke probably won't rise to the level of a violation of federal or state law. The U.S. Supreme court recently stated that the federal law prohibiting sex discrimination was not intended to be a "general civility code." The courts usually require a series of incidents which combine to create a pervasive atmosphere of harassment and discrimination. HOWEVER, a single egregious incident could be enough to result in a violation of the law. For example, a single sexual assault would be more than sufficient.
What are the laws that make sexual harassment illegal?
Title VII of the Civil Rights Act of 1964 makes sex discrimination (as well as discrimination based on race) unlawful in the workplace. Title IX of the Higher Education Amendments of 1972 outlaws sex discrimination in the classroom for those institutions which receive federal funds. UNCG falls into that category because of federal grants and contracts that we receive plus the federal financial aid we award to students. Remember that the courts, the Equal Employment Opportunity Commission (EEOC) and the Office of Civil Rights of the Department of Education (OCR), have all defined sexual harassment to be a form of unlawful sex discrimination under Title VII and Title IX.
The State of North Carolina also prohibits sexual harassment in the workplace at state institutions such as UNCG. Thus, a state employee who commits sexual harassment may be disciplined up to and including dismissal.
Is same sex harassment illegal?
Yes. Although this may seem obvious, it wasn't obvious to many federal courts until the Supreme Court finally resolved the issue in the summer of 1998. Some lower courts had looked at the legislative history of the federal anti-sex discrimination statutes and concluded that they were designed to protect women who historically had been the main targets of sex discrimination in the workplace. However, the Supreme Court looked at the plain language of the law which makes no distinction on the basis of gender. In Oncale v. Sundowner Offshore Services, Inc., the Court said that harassment based on sex is the key. Thus, a female supervisor who discriminates against female subordinates because she prefers to work with men is guilty of violating Title VII, and vice versa.
Can sexual harassment ever amount to a criminal offense?
Absolutely. Any sexual assault, from rape to simple uninvited groping, violates various provisions in the State criminal code. Further, "quid pro quo" harassment could be considered a form of extortion, i.e., "if you don't give me something of value (sex) then I will do bad things to you such as denying you a promotion or giving you bad grades." The statute reads,
§ 14-118.4 Extortion.
Any person who threatens or communicates a threat or threats to another with the intention thereby wrongfully to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and such person shall be punished as a Class F felon.
I have other questions that you haven't answered.
Please contact the General Counsel's office at 334-3067.