SEXUAL HARASSMENT PACKET: EEOC GUIDELINES
WE COMMENTS AND ANALYSIS
MODEL POLICIES FOR THE OFFICE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1604
Discrimination Because of Sex Under Title VII of the Civil Rights Act of 1964, as Amended; Adoption of Interim Interpretive Guidelines
AGENCY: Equal Employment Opportunity Commission.
ACTION: Interim amendment to guidelines on discrimination because of sex.
SUMMARY: The Equal Employment Opportunity Commission is amending its Guidelines on Discrimination Because of Sex on an interim basis, in order to clarify its position on the issue of sexual harassment and to invite the public to comment on the issue. This amendment will re-affirm that sexual harassment is an unlawful employment practice. These interim Guidelines are in full effect from the date of their publication; however, EEOC will receive comments for 60 days subsequent to the date of publication. After the comment period EEOC will evaluate the comments, make whatever changes to the Interim Guidelines may seem appropriate in light of the comments, and publish the final Guidelines.
DATES: Effective date: April 11, 1980. Comments must be received on or before June 10, 1980.
ADDRESSES: Written comments may be addressed to: Executive Secretariat. Equal Employment Opportunity Commission, 2401 E Street, NW., Room 4096, Washington, D.C. 20506.
All envelopes should be marked Sexual Harassment on the lower left corner.
All public comments may be reviewed from 9:30 a.m. to 4:30 p.m., Monday through Friday, at: Library (Room 2003). EEOC, 2401 E Street, NW., Washington, DC 20506.
FOR FURTHER INFORMATION CONTACT: Frederick D. Dorsey, Director, Office of Policy Implementation, Room 4002, 2401 E Street, NW., Washington, DC 20506, (202) 634-7060.
SUPPLEMENTARY INFORMATION: Sexual harassment like harassment on the basis of color, race, religion, or national origin, has long been recognized by EEOC as a violation of Section 703 of Title VII of the Civil Rights Act of 1964, as amended. However, despite the position taken by the Commission, sexual harassment continues to be especially widespread. Because of the continued prevalence of this unlawful practice, the Commission has determined that there is a need for guidelines in this area of Title VII law. Therefore, on an interim basis EEOC is amending its Guidelines on Discrimination because of Sex (37 FR 6836, April 5, 1972, as amended) to add § 1604.11. Sexual Harassment.
Interim § 1604.11(a) provides that harassment on the basis of sex is a violation of Title VII and states that such unwelcomed behavior may be either physical or verbal in nature. The interim section also sets out three criteria for determining whether an action constitutes unlawful behavior. These criteria are (1) submission to the conduct is either an explicit or implicit term or condition of employment; (2) submission to or rejection of the conduct is used as the basis for employment decisions affecting the person who did the submitting or rejecting; or (3) the conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. It is the Commission's position that sexual harassment, like racial harassment, generates a harmful atmosphere. Under Title VII, employees should be afforded a working environment free of discriminatory intimidation whether based on sex, race, religion, or national origin. Therefore, the employer has an affirmative duty to maintain a workplace free of sexual harassment and intimidation.
Interim § 1604.11(b) recognizes that the question of whether a particular action of incident establishes a purely personal, social relationship without a discriminatory employment effect requires a factual determination. In making such a determination, the Commission will look at the record as a whole and at the totality of the circumstances, emphasizing the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
Interim § 1604.11(c) applies general Title VII principles to the issue of sexual harassment and states that an employer is responsible for the acts of its supervisory employees or agents, regardless of whether the acts were authorized or forbidden by the employer and regardless of whether the employer knew or should have know of the acts. This paragraph (c) of § 1694.11 further states that the Commission will determine whether an individual acts in either an agency or a supervisory capacity on a case by case basis, examining the circumstances of the particular employment relationship and the job functions performed by the individual, rather than accepting an individual's title as being controlling.
Interim § 1604.11(d) distinguishes the employer's responsibility for the acts of its agents or supervisors from the responsibility it has for the acts of other persons. This paragraph (d) of 1604.11 states that liability for the acts of those persons not mentioned in paragraph (c) exists only when the employer, or its agents or supervisory employees, knows or should have known of the conduct. The paragraph further provides that the employer may rebut this apparent liability for the conduct by showing that it took immediate and appropriate corrective action.
Consistent with the policy of voluntary compliance under Title VII, § 1604.11(e) recognizes that the best way to achieve an environment free of sexual harassment is to prevent the occurrence of sexual harassment by utilizing appropriate methods to alert the employees to the problem and to stress that sexual harassment, in any form, will not be tolerated. This paragraph (e) of § 1604.11 requires an employer to take all steps necessary for the prevention of sexual harassment and gives the following as examples of steps which might be deemed necessary: Affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise the issue of sexual harassment under Title VII, and developing methods to sensitize all concerned.
This amendment to the "Guidelines on Discrimination Because of Sex" is a significant regulation under Executive Order 12044, "Improving Government Regulations" (43 FR 12661, March 24, 1978). There are no regulatory burdens or recordkeeping requirements necessary for compliance with the amendment. The Commission has determined that these proposed guidelines will not have major impact on the economy and that a regulatory analysis is not necessary.
In compliance with Executive Order 12067 (43 FR 28967, July 5, 1978), the Commission has consulted with representatives of the Office of Personnel Management. Department of Justice. Department of Labor, and Department of Health, Education, and Welfare. At the end of the 60 day comment period, the Commission will again consult with these agencies on the issues raised through the public comment process.
COMMENTS ON THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S INTERIM GUIDELINES ON SEXUAL HARASSMENT
Published by the Women Employed Institute June 10, 1980
Submitted by: National Organization for Women National Women's Political Caucus New York City Commission on the Status of Women Center for National Policy Review Women Employed Women's Equity Action League Educational and Legal Defense Fund NOW Legal Defense and Education Fund, Inc. Women's Legal Defense Fund
Susan K. Blumenthal
NOW Legal Defense and Education
36 W. 44th Street
New York, New York
Donna R. Lenhoff
Women's Legal Defense Fund
1010 Vermont Avenue, N.W.
Washington, D.C. 20005
On April 11, 1980, the Equal Employment Opportunity Commission ("EEOC") published interim amendments to its interpretive Guidelines on Discrimination Because of Sex under Title VII of the Civil Rights Act of 1964, as amended, to add a section governing sexual harassment.1 The new section clarifies the generally recognized principle that sexual harassment is a violation of Title VII, and outlines for employers and employees alike the general analytical framework in which charges of sexual harassment will be evaluated. The newly adopted guidelines were effective upon publication, but may be modified to reflect considerations raised in a 60 day public comment period. The organizations submitting these comments support the issuance of these guidelines.2
Each of these organizations either represents (as advisors, counselors, or lawyers) or is comprised of working women who know through painful first-hand experience how widespread and serious is the problem of sexual harassment in the work-place. Sexual harassment in some form is a common and recurring problem for the vast majority of working women. Moreover, because it is a manifestation of societal legitimation of
1 The notice and amendment are published at 45 F.R. 25024 (April 11, 1980). EEOC's Guidelines on Discrimination Because of Sex are codified at 29 CFR Part 1604; the newly adopted section on sexual harassment is section 1604.11.
2 A short description of each of the groups joining these comments is appended.
the oppression of women,3 it often goes unnoticed; even when an employee complains of harassing treatment by a supervisor or co-workers, the official attitude is to treat her complaint as little more than a joke. But it is not a joke: sexual harassment imposes a significant economic and psychological burden on women employees, and contributes to the creation of a work environment that is controlling and oppressive.
Yet legal redress for sexual harassment has been either unavailable or completely inadequate, generally because it is perceived as a personal and not a legal problem.4 Adoption of these guidelines, accompanied by the Commission's clarion prefatory statement that an "employer has an affirmative duty to maintain a workplace free of sexual harassment and intimidation,"5 when added to the weight of a growing body of case law,6 will, we hope, serve to impress on the business community that sexual harassment must be treated with the same seriousness as other forms of unlawful discrimination. We commend the Commission for taking this crucial step.
3 See C. MacKinnon, Sexual Harassment of Working Women (1979)
4 Another reason for the inadequacy of legal redress rests with the fact that sexual harassment is practiced primarily again women, and, historically, claims made by women have been viewed with suspicion and skepticism. Women's credibility has long been regarded as suspect by our male-dominated society. For example, in the 17th century, Lord Hale developed his infamous jury charge for rape trials whereby juries were instruct to weigh women's testimony very carefully on the ground that an accusation of rape is "easy to make but difficult to prove."
5 45 F.R. at 25024.
6 Cases cited note 7 infra.
Further, we support the approach the Commission takes in the interim guidelines. Recognizing that sexual harassment is the quintessential form of discriminatory treatment on the basis of sex, the Commission applies well-accepted Title VII principles to arrive at general guidelines governing the assessment of liability in the context of sexual harassment in the workplace. Its approach is consistent with the weight of authority in the area: every federal court of appeals that has been faced with the issue has similarly held that sexual harassment constitutes a Title VII violation.7 Under this approach, the guidelines permit flexibility to allow for the many variations in behavior that may be alleged in sexual harassment cases, while at the same time setting forth a clear-cut standard of liability where such allegations are found to be true.
Before making our comments on the specific language of the guidelines, we feel it is important to discuss the nature and extent of sexual harassment in the workplace, to illustrate the effect of sexual harassment upon employees, to underscore the need for the guidelines, and to set the context in which they will operate.
7 Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3rd Cir. 1977); Garber v. Saxon Bus. Prods., 552 F.2d 1032 (4th Cir. 1977). Cf. Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979).
The Nature and Extent of Sexual Harassment in the Workplace
Because sexual harassment takes many forms, often very subtle, it is not a concept susceptible to precise definition.8 It may take the form of a single encounter; more often, it is a series of incidents. It may include, for example, verbal abuse and humiliation, leers, indecent suggestions, physical touching, and even rape. It extends along a continuum of increasing severity and unwantedness. The clearest case is when a male supervisor propositions a woman employee, conditioning promotion or even her job on compliance with his demands; but harassment by co-workers, often sanctioned by supervisors, is also common.9
8 The following definition, proposed by the National Organization for Women (NOW) and Working Women's Institute, is a good one because it reflects both the scope of the behavior that may be involved and the nature of the effect of that behavior on the recipient:
Sexual harassment is any repeated or unwanted verbal or physical sexual advance, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace which is offensive or objectionable to the recipient or which causes the recipient discomfort or humiliation or which interferes with the recipient's job performance. (Brief Amici Curiae of the National Organization for Women and Working Women's Institute in Continental Can Co. v. Minnesota (Minn. S. Ct. No. 49988), at 15-16.)
9 In concluding that sexual harassment by co-workers is a violation of the Minnesota Human Rights Act, Minn. Stat. §363.03, sub 1(2) (c) (1978), the Minnesota Supreme Court recognized both that women are subjected to various types of sexual harassment and that sexual harassment imposes a different term or condition of employment on female employees than is imposed upon male workers. The court stated:
Differential treatment on the basis of sex is more readily recognizable when promotion or retention of employment is conditioned on dispensation of sexual favors. It is as invidious, although less recognizable, when employment is conditioned either explicitly or impliedly on adapting to a workplace in which repeated and unwelcome sexually derogatory remarks and sexually motivated physical conduct are directed at an employee because she is a female. Repeated, unwarranted, and unwelcome verbal and physical conduct of a sexual nature, requests for sexual favors and sexually derogatory remarks clearly may impact on the conditions of employment. When sexual harassment is directed at female employees because of their womanhood, female employees are faced with a working environment different from the working environment faced by male employees. [Footnote omitted]
Continental Can Co. v. Minnesota, No. 49988, slip op. at 12 (Minn. S. Ct. June 6, 1980).
The incidence of sexual harassment is staggering. As with rape and battering, women are hesitant to report its occurrence, either because they are fearful of retaliation or embarassment, or because they are resigned to its inevitability. But available statistics indicate that approximately seven out of ten women are sexually harassed in some form at some time in their working lives.10 And this statistic may be low. In a survey conducted by Redbook magazine in 1976, 88% of the 9,000 respondents stated that they had experienced sexual harassment on the job.11
Contrary to popular misconception, sexual harassment is not an individualized, personal phenomenon that happens as
10 In a study conducted by the Working Women's Institute in May, 1975, in Ithaca, New York, 70% of the respondents reported that they had experienced some unwanted sexual advances at work.
11 Safran, "What Men Do to Women on the Job: A Shocking Look at Sexual Harassment," 148 Redbook 149 (1976).
an isolated event when a particular man is attracted to a particular woman. Although in some cases women and men meet on the job and begin sexual relationships, these relationships are premised upon mutual agreement. To the contrary, sexual harassment involves sexual advances that are not mutual, but that are imposed upon a woman by a man who directly or indirectly holds power over her job and therefore her continued economic security. Studies show that approximately 75% of harassers have the direct power to hire and fire their victims.12 Nor do women who are harassed by co-workers have any real control over the situation; as long as management condones the co-workers' behavior, the women have no alternative but to tolerate it or leave their jobs. Sexual harassment is, above all, an expression of power by men over women in the employment context.
The Effect of Sexual Harassment on Women Workers
Even more important than the incidence of sexual harassment is its effect on the reality of the work experience for the woman who must suffer it. A woman who will not submit to the sexual demands or who refuses to continue tolerating the harassment may lose her source of income. A severe price is also paid by the woman who continues to work in a hostile environment in which she is always subject to a demeaning sexual put-down or an unwanted advance. The pervasiveness and
12 A study of women employees in three federal agencies conducted between November 1978 and July 1979 showed that 76% of employees who were harassed were harassed by their supervisors. Working Women's Institute places this figure at 75%.
general acceptance of sexual harassment of women at their jobs operates to circumscribe women's employment opportunities in every respect.
Sexual harassment affects women economically, psychologically, and physically. Many women quit their jobs rather than remain in work environments made intolerable by sexual advances, sexually discriminatory insults, sexually derogatory statements or other forms of sexual harassment. Nearly 50% of the respondents to the Redbook survey either knew someone or had themselves been fired or left their jobs because of sexual harassment. Women workers forced to leave their jobs are disadvantaged in a number of ways. Not only do they suffer immediately from deprivation of their salaries, but because of job turnover, they remain in low-paying jobs on the bottom of both the pay scale and the seniority ladder. See Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job, 23-25 (1978). Moreover, some women affirmatively choose to stay in lower paying, traditionally female jobs in all-female environments rather than subject themselves to possible harassment.
Even if a female worker does not lose her job, the effort expended in trying politely to discourage sexual attentions inevitably reduces her efficiency and opportunity to learn her job and develop new skills. Crull, The Impact of Sexual Harassment on the Job: A Profile of the Experiences of 92 Women 6-7 (1978) (to be published). In a 1978 Working Women's Institute study, 83% of the respondents admitted that sexual harassment had interfered in some way with their ability to work. Id. at 7. Additionally, some of these women suffered a loss of self-confidence because they were made to doubt their ability to handle themselves socially and professionally. Many women reported that they began to dread going to work altogether, and that they lost their desire to be successful. Indeed, 63% of the respondents to the 1978 study suffered symptoms such as headaches, nausea, and weight change. Harassment is a stressful and intolerable job condition that is hazardous to mental health and therefore affects job performance and satisfaction.
Just as racially slurs and epithets have been held to constitute racial harassment in violation of Title VII's ban on race discrimination, see, e.g., Friend v. Leidinger, 446 F. Supp 361 (E.D. Va. 1977), aff'd., 588 F. 2d 61 (4th Cir. 1978); Howard v. National Cash Register Co., 388 F. Supp. 603 (S.D. Ohio 1975), so, too, sexual comments, insults, leers and jeers directed at female employees violate Title VII's prohibition on sex discrimination. See cases cited note 7 supra.
Specific Comments on the Guidelines
We now address each of the subsections of the new Section 1604.11 in turn.
Subsection (a) of the guidelines provides:
Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
We commend the EECC for explicitly recognizing that sexual harassment is a form of sex discrimination under Title VII. As noted above, this follows the reasoning in an increasingly long line of court cases.13
However, the language of subsection (a) delineating what constitutes sexual harassment is too narrowly drawn and is potentially misleading; employers, otherwise mindful of these guidelines, might find themselves condoning behavior which constitutes sexual harassment. Sexual harassment is discrimination practiced against women because they are members of the female sex; the harassment is on the basis of sex, but sex in the gender sense of the term rather than in its erotic or procreative sense. Sexual harassment is perhaps better termed "gender or sex-based harassment." The essence of sexual or gender harassment is that female employees - merely because they are female - receive different treatment than male employees. Continental Can Co. v. Minnesota, No. 49988, slip op. at 12 (Minn. S. Ct. June 6, 1980).
Although sexual harassment includes "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature," it also includes many other types of discriminatory conduct. It includes such behavior as sexually derogatory or insulting statements that are designed to humiliate or "put down" women as women, but
13 Cases cited note 7 supra.
which are not necessarily intended to be "sexually provocative." These types of comments are exemplified by remarks to the effect that women are inferior and incapable of performing certain jobs or that women who work in factories are tramps, Continental Can Co. v. Minnesota, supra, slip op. at 6-7; and sexually explicit remarks regarding a woman's marital status and virginity. Kyriazi v. Western Electric Co., 461 F. Supp. 894, 934 (D.N.J. 1978).
Although the language of the guidelines is presently too restrictive in defining sexually harassing conduct, the subtleties of human nature are such that we do not believe it is possible to define for all time what behavior constitutes sexual harassment. At best, language outlining what may be sexual harassment can only be illustrative. Thus, we recommend that the language of subsection (a) be modified to make it clear that the types of conduct described are only examples, and not an exhaustive list of sex-based harassing behaviors. To do so, we recommend that the second sentence of subsection (a) begin with the phrase "For example." Moreover, the list of examples should be expanded to include such other types of gender-based harassment as derogatory or insulting statements and nonverbal forms of sex-based harassment.
A further limitation of the present subsection (a) is the inclusion of the word "substantially" in subsection (a) (3). The inclusion of "substantially" is inappropriate and incorrect, and it should be stricken from the guidelines. Sexual harassment is a violation of Title VII; as a result, there is no rational reason for condoning this illegal conduct under any circumstances. Any interference with an individual's work performance because of sex discrimination should not be tolerated under Title VII, regardless of its substantiality. Indeed, the EEOC's comments in the preamble to these interim guidelines recognize the principle that "Under Title VII, employees should be afforded a working environment free of discriminatory intimidation whether based on sex, race, religion, or national origin." 45 F.R. 25024.
Sexual harassment is sex discrimination because certain employees - women - are being subjected to a term and condition of employment - interference with their work performance or intimidation - that men do not have to face. The substantiality of that interference may be relevant in determining the appropriate remedy, but it should have no bearing on the existence of a violation. Furthermore, evaluating the "substantiality" of interference is much too subjective and difficult to be workable, especially in the area of sexual harassment, where individual perceptions of the acceptability of behavior vary so enormously. A man's view of the interference or harassing impact caused by constant comments about a woman's physique or appearance, for example, may be very different than a woman's perception.
One final comment remains to be made with respect to subsection (a). Although subsection (a) (3) acknowledges that sexual harassment may create an intimidating, hostile, or offensive working environment, it does not explicitly recognize that sexual harassment may create a stressful atmosphere at work. Thus, the guidelines should be changed to reflect this fact.
Thus, if our recommended changes are adopted, subsection
(a) would read:
Harassment on the basis of sex is a violation of Sec. 703 of Title VII. For example, unwelcome sexual advances, requests for sexual favors, other verbal, physical, or nonverbal conduct of a sex-based discriminatory nature, and sexually derogatory or insulting statements, constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile, offensive, or stressful working environment. [Footnote omitted]
2. Subsection (b) of the guidelines provides:
In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
We agree with the approach taken by the EEOC that in an area such as sexual harassment, where the offensive conduct may be subtle and hard to define precisely, the best way of determining whether unlawful discriminatory action has taken place is to look at the totality of the circumstances under which it occurred, and then decide the issue on a case-by case basis.
However, the meaning of the phrase "particular action" which appears in the second sentence of subsection (b) is unclear and potentially confusing. Although it would appear that EEOC's intent is that the phrase "alleged conduct" in the first sentence of subsection (b) should be regarded as synonymous with "particular action" in the second sentence, this is open to a contrary interpretation. Therefore, in order to eliminate ambiguity and to promote language consistency, we recommend that the phrase "alleged conduct" be substituted for "particular action."
3. Subsection (c) of the guidelines provides:
Applying general Title VII principles, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer") is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.
We heartily support and endorse the EEOC's interpretation that employers are responsible for acts of sexual harassment committed by their agents and supervisory employees regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. This "per se" rule of employer liability is in keeping with well-settled Title VII principles. It represents a restatement of the hornbook principle found in Title VII, as well as in contract and tort law, that an employer is liable for the acts of its agents and supervisory personnel. See, e.g., Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
4. Subsection (d) of the guidelines provides:
With respect to persons other than those mentioned in subsection (c) above, an employer is responsible for acts of sexual harassment in the workplace where the employer, or its agents or supervisory employees, knows or should have known of the conduct. An employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action.
We strongly support the EEOC's interpretation that employer liability for sexual harassment extends to the discriminatory conduct of persons other than its agents and supervisory employees (those listed in subsection (c)), when supervisory employees know or should know of the conduct. Indeed, this result is mandated by the Title VII principle, embraced in the preamble to these guidelines, that an employer has an affirmative duty to maintain a workplace free of sexual harassment and intimidation.
While we agree with the EEOC's approach of not enumerating an exhaustive list of those persons whose conduct the employer is responsible for, we believe that the guidelines should give more guidance to employers. As a result, we recommend insertion of the phrase "including but not limited to co-workers, clients, and customers," immediately following the phrase "With respect to persons other than those mentioned in paragraph (c) of this section,…"
Likewise, the guidelines should provide more guidance to employers as to the meaning of the phrase "knows or should have known." Illustrative examples should be included. For example, subsection (d) should contain a statement that an employer who has sex integrated a formerly all-male plant, assembly line, or job classification, should be on constructive notice that the likelihood that sexual harassment exists is high, and that failure to rid the workplace of this harassment will constitute a violation of these guidelines. See Brief Amici Curiae of the National Organization for Women and Working Women's Institute in Continental Can Co. v. Minnesota (Minn. S. Ct. No. 49988, at 56-58).
Moreover, we believe that the principle stated by the last sentence of subsection (d) is an inaccurate statement of Title VII law. The employer should not be able to rebut liability by showing that it took immediate and appropriate corrective action. Institution of corrective action may mitigate damages, but it does not necessarily defeat liability. This sentence appears to create an entirely new and unjustifiable defense to a Title VII violation. Surely the EEOC would not contend that an employee, who has been denied a promotion because of discrimination perpetrated by one employee without the knowledge or approval of the employer, but who is subsequently promoted to his/her rightful position once the discrimination is discovered, would not be entitled to receive a back pay award for the period during which the discrimination operated. Thus, we urge that the last sentence of subsection (d) be deleted, or, at a minimum, that it be rewritten to reflect the fact that immediate and corrective action may mitigate damages, but does not rebut liability.
In any event, the concept of "immediate and appropriate corrective action" should be explained more fully. Corrective action appropriate for a co-worker - e.g., disciplinary action or suspension - may be very different from that appropriate for a client or customer - e.g., withholding business, or not requiring an employee who deals with the public to wear a revealing low-cut or sexy outfit. Furthermore, whatever the form of discipline, it should be well publicized so that it will act to deter further discriminatory conduct by others.
5. Subsection (e) of the guidelines provides:
Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.
We commend the EEOC for recognizing that prevention is the best method of eliminating sexual harassment. Once harassment has occurred, the emotional, physical, and professional damage done can never be completely undone. Furthermore, enforcement of legal rights against sexual harassment is fraught with difficulty. An employment discrimination action often requires protracted administrative proceedings. Proving subtle forms of discrimination may be difficult. Maintaining a private action necessitates securing and paying for an attorney. All of this takes time, effort, money and emotional energy; and, in the meantime, the woman may lose her source of economic support, if she is fired or feels compelled to leave because she has exercised her Title VII rights.14
14 Although retaliatory firing is a violation of Title VII, it is nevertheless a fact of life for many plaintiffs. For example, the named plaintiff in Kyriazi v. Western Electric was fired for filing her claim.
To strengthen further the effectiveness of this provision and to provide increased guidance to employers, this subsection should contain a much more explicit and detailed catalog of the types of steps that employers should take in their preventive programs. Such a listing could include the following actions: Employers should issue policy statements condemning sexual harassment in writing to every employee, post them in conspicuous places in the workplace, and add them to their affirmative action plans and to all union contracts. There should be on-going training programs for all current employees describing sexual harassment and making it clear that it will not be tolerated in any form. Employees and agents (especially where women are in non-traditional jobs) should be made aware of specific disciplinary methods that will be used for violators. As new employees join the working environment, workshops on sexual harassment should be included as part of the initial briefing on policies of the employer. When discipline is meted out to a sexual harasser, the discipline should be publicized both as a deterrent to future "would-be" sexual harassers and also to alert other employees to the tendencies of the violator. Grievance procedures for reporting, investigating, and hearing claims of sexual harassment should be instituted and publicized.
6. Finally, we note that even these guidelines will not be effective unless they are enforced by trained, sensitive investigators. The societal attitudes that foster sexual harassment are ingrained and pervasive; indeed, they have been known to affect even EEOC employees.15 We therefore urge the EEOC to institute intensive staff training coincident within the adoption of these guidelines.
We commend the EEOC for recognizing the necessity for and adopting these guidelines on sexual harassment. In order to correct the deficiencies in the guidelines so as to make the promise of a workplace free of sexual harassment and intimidation into a reality, we strongly urge the EEOC to amend the interim guidelines in accordance with the proposed changes contained in these comments.
15 WLDF has been notified of at least one complaint of sexual harassment of an EEOC employee by her supervisor, and one complaint of sexual harassment of a charging party by an EEOC investigator.
Groups and Organizations Joining Comments on EEOC's
Sexual Harassment Guidelines
The National Organization for Women ("NOW") is a national membership organization of approximately 110,000 women and men in 700 chapters throughout the United States, dedicated to assuring equal employment opportunities for women and bringing women into full participation in American society. NOW is frequently contacted by and asked to assist women who have been subjected to sexual harassment.
The National Women's Political Caucus is a national membership organization of over 45,000 members with over 300 state and local caucuses. Its primary purposes are to obtain equal representation for women in elective and appointive office, and to speak out on issues of direct concern to women.
The New York Commission on the Status of Women, established by Mayoral Executive Order in 1975, advises the Mayor of New York City on women's issues, supports and promotes women's rights in the private and public sectors of New York City, and advocates change to promote women's equality. The Commission recommends and advocates legislation and policy changes at the city, state and Federal levels. Since elimination of barriers to equal employment opportunity is a high priority, the Commission is deeply concerned about women as victims of sexual harassment in the workplace.
The Center for National Policy Review, located at the Catholic University School of Law, is a public interest law group dedicated to protecting the rights and advancing the interests of racial minorities, women and low-income families through the policy-making and administrative processes of the federal government. It is one of the only organizations in the country that provides research, technical expertise, and legal counsel to the nation's major civil rights organizations.
Women Employed is a non-profit organization of working women in Chicago, Illinois, with over 1,000 members who work at all levels of employment in banks, insurance companies, stock brokerages, engineering firms, law firms, government agenci and all types of corporations. Women Employed has a five-year history of protecting the rights of working women, by exposing employers' discriminatory practices, by filing charges with the EEOC and other government agencies to obtain appropriate remedies against discriminating employers, and by monitoring the enforcement efforts of these government agencies.
The Women's Equity Action League Educational and Legal Defense Fund is a non-profit, tax-exempt organization that seeks to secure legal and economic rights for women by monitoring the implementation and enforcement of equal opportunity laws, by conducting research and publishing reports, by supporting lawsuits that raise issues of national significance, and by training interns to have an impact on federal policies.
The NOW Legal Defense and Education Fund is a non-profit civil rights organization established in 1970, by leaders of the National Organization for Women, to perform a broad range of legal and educational services nationally in support of women's efforts to eliminate sex-based discrimination and secure equal rights. The NOW LDEF has participated in numerous cases to secure enforcement of legal provisions barring employment discrimination and has been actively working to eradicate sexual harassment in the workplace, To this end, the LDEF wrote and filed an amici curiae brief for NOW and Working Women's Institute in the landmark case of Continental Can Co. v. Minnesota, No. 49988 (Minn S. Ct. June 6, 1980), in which the Minnesota Supreme Court held that sexual harassment by co-workers constitutes a violation of the state Human Rights Act.
The Women's Legal Defense Fund is a non-profit, tax-exempt organization founded in 1971 to provide pro bono legal assistance to women who have been discriminated against on the basis of sex. The Fund devotes a major portion of its resources to combatting sex discrimination in employment through litigation of significant employment discrimination cases, operation of an employment discrimination counseling program, and agency advocacy before the EEOC and other federal agencies that are charged with enforcement of the equal employment opportunity laws.
SAMPLE LETTER USED IN WE JOB DISCRIMINATION COUNSELING PROGRAM
5 South Wabash
Chicago, Illinois 60603
Women Employed is an organization concerned with the problems of working women. One of WE's most important programs is its counseling service in which WE attempts to resolve, by mediation, informal contacts, and preferably not by litigation, on-the-job problems of working women. Recently, with the issuance of regulations by the Equal Employment Opportunity Commission defining and prohibiting sexual harassment in the workplace, Women Employed has received a number of sexual harassment complaints from working women. In particular, WE received a charge of unlawful sexual harassment by one of your employees, (Name). He has been accused of ____verbal and ____physical abuse against (Name).
The purpose of this letter is to request you to investigate these charges and to take appropriate disciplinary action, if you find the charge has merit. This type of internal investigation and discipline is not only required by the EEOC regulations but in our opinion is the most effective method to eliminate a problem before it becomes so unmanageable that drastic action, such as litigation, is the only alternative. We hope you share our view.
In addition, our experience indicates that, particularly in a work environment where sexual harassment is believed to have occurred, a salutory method to eradicate the effects of such offensive conduct is to adopt and disseminate a formal policy with regard to sexual harassment as the State of Illinois has recently done. A copy of our suggested four-point program is enclosed, along with copies of the EEOC's guidelines in case you haven't seen them.
We would appreciate your informing us of the action your company takes in response to these requests. Not only is it helpful to us to monitor and follow-up on such charges, but your response will forestall any further enforcement action on our part. Finally, we are available, if you desire, for advice or consultation.
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