national advisory council on women's educational programs
1832 M St., N.W.
Washington, D.C. 20036
June 10, 1980
Equal Employment Opportunity Commission
2401 E Street, N.W.
Washington, D.C. 20506
RE: Sexual Harassment; Interim amendment to guidelines on discrimination because of sex; 45 FR 25024, April 11, 1980
The National Advisory Council on Women's Educational Programs is a presidentially appointed body—1 charged by its authorizing statute—2 with advising various Federal officials on the attainment of sex equity in education. For more than a year the Council has been deeply involved in a study of the sexual harassment of students, an enterprise which necessarily draws heavily on the case law, agency interpretations, and literature of employment related sexual harassment. This involvement has convinced the Council of the need for interpretive guidelines on liability for sexual harassment under Title VII, and we commend you for filling that need. Our specific comments follow.
1604.11(a): Discriminatory nature of sexual harassment.________________________
While generally acceptable, this definition erroneously implies that it is the sexual content of the behavior at issue which makes it unlawful discrimination under Section 703 of Title VII. In fact, the dispositive factor is not the content of the act but that only the members of one sex are its victims. This position has been articulated in several directly pertinent cases. The D.C. Circuit, for example, ruled in Williams, v. Saxbe, 413 R. Supp. 654 (1976), that
1 Subject to Senate confirmation
2 Education Amendments of 1978, Women's Educational Equity Act (P.L. 95-561)
Eliza M. Carney, Tempe, AZ, chair
Gladys Gunn, Dayton, OH, Vice-Chair Joy R. Simonson, Executive Director Marjorie Bell Chambers, Los Alamos, NM Ellen Hoffman, Washington, D.C. Mary Beth Peters, Pittsburgh, PA Agnes 1. Chan, San Francisco, CA Kathleen E. Humphrey, Durham, NC J. Richard Rossie, Memphis, TN Sr. M. Isolina Ferre, Ponce. PR Thera C. Johnson, Ogden, UT Bernice Sandler, Silver Spring, MD Elizabeth Z. Fryer, Nashville. TN Anna Doyle Levesque, Portsmouth, RI Mary Beth Peters, Pittsburgh, PA Marjorie Bell Chambers, Los Alamos, NM Ellen Hoffman, Washington, D.C. Marguerite Selden, Washington, D.C. Jon Fuller, Ann Arbor. Ml Paul Parks, Boston, MA Susan Margaret Vance, Chicago, IL
EX OFFICIO MEMBERS
Director, U. S. Commission on Civil Rights, Director, Women's Bureau, U. S. Department of Labor; Women's Action Program, U. S. Department of Health Education and Welfare
… (R)etention of her job was conditioned upon submission to sexual relations - an extraction which the supervisor would not have sought from any male. (at 989)
… The vitiating sex factor thus stemmed not from the fact that what appellant's supervisor demanded was sexual activity - which of itself is immaterial - but from the fact that he imposed upon her tenure in her then position a condition which he would not have fastened upon a male employee. (footnote, 1d.)
Later, this Court held held under Barnes v. Costle, 561 F.2d 983 (1977) that:
It was and is sufficient to allege a violation of Title VII to claim that the rule creating an artifical barrier to employment has been applied to one gender and not to the other.
This test is also implicit in the Fourth Circuit's decision in Garber V. Saxon Business Products, Inc., 552 F. 2d 1032 (1977), by its emphasis on the respective genders of the parties involved:
We think that the complaint and its exhibits … allege an employer policy or acquiescence in a practice of compelling female employees to submit to the sexual advances of their male supervisors in violation of Title VII. (emphasis added; at 1032)
Finally, even where the language of decisions has appeared to emphasize the content of the act rather than the gender of its victim(s), (esp., Tomkins V. Public Service Electric and Gas Co., 46 U.S.L.W. 2332 (3rd Cir. November 23, 1977)), the facts of the cases involved invariably show that the act at was directed toward only the member(s) of one gender.
Absent specific guidance from the Courts to the effect that sexual demands constitute a per se violation of Title VII, the statute and the issue are better served by use of the test articulated in Barnes, supra, and Williams, supra. This position is more defensible under leading theories of discrimination law, and affords adequate Title VII protection to employees.
1604: 11 (a): Meaning of "sexual"
In a similar vein, the Council encourages the Commission to expand its definition of sexual harassment to include unwelcome verbal or physical conduct of a gender-charged nature. Such behavior may include denigration of women (or men) through sexist humor, remarks, or other activities which create an "intimidating, hostile, or offensive working climate," but which do so without any suggestion that sexual activity take place between the principals. An atmosphere charged with such anti-woman (or anti-man) bias is as potentially harmful to employees as is an atmosphere charged with racist sentiment, and constitutes "sexual" harassment in a very real manner.
1604. 11(c) and (d): Discharge of liability
The text of the interim guidelines suggests that an employer may rebut Title VII liability only where the perpetrators of acts of sexual harassment are not its agents or supervisory employees. Such a posture does not encourage employers to develop adequate internal mechanisms for handling incidents of sexual harassment. Therefore, the Council encourages the Commission to adopt a standard which will permit an employer to discharge liability if it can show that it has provided a complainant-victim with appropriate relief.
We wish to stress, however, that such a proviso should not impose any obligation on the employee to utilize internal procedures or otherwise provide notice to the employer before raising the issue under Title VII. (Miller v. Bank of America, 20 FEP Cases 462 (9th Cir. 1979)).
The Council concurs with the Commission on its determination that "actual or constructive knowledge" is a necessary element of establishing liability only where the initiating party is not an agent of the employer or a supervisory employee of the victim.
1604. 11(e): Prevention
The language of this section does not require an employer to take "all steps necessary for the prevention of sexual harassment," despite the indication in the section titled "Supplementary Information" that the section will establish such a requirement. If it is the Commission's intent to require such activity, and the Council recommends such a requirement, a more compelling term than "should" must be used in 1604.11(e) to describe the nature of an employer's accountability.
As noted in the section on supplementary information, development and publication of sanctions - preferably keyed to varying levels of offense - should be considered an essential part of any effective deterrent, and should be so described under a revised section 1604.11(e).
In closing, we wish to reaffirm our support for the Commission's involvement in this realm. The guidelines are a timely and important contribution to the Federal anti-discrimination effort. If we may be of any assistance to you as you revise the guidelines, please let us know.
Sincerely, Eliza M. Carney
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