Introduction
The Working Women's Institute and the NOW Legal Defense Fund offered the most extensive comments on the guidelines against sexual harassment issued by the Equal Employment Opportunity Commission in the wake of the House subcommittee's report. Both commentaries discussed the prevalence and effects of sexual harassment on working women and emphasized the economic basis of sexual harassment. Joan Vermuelen of the Working Women's Institute argued that women's vulnerability to sexual harassment was based on their subordinate position in the "economic hierarchy." She described sexual harassment as "the assertion of power by men over women who are perceived to be in a vulnerable position with respect to male authority" and as the "quintessential expression of the stereotypic role expectations of both sexes." Sexual harassment, she argued, denied women a role as a "contributing member of the workforce." Similarly, the NOW/WLDF commentary cited many studies of sexual harassment, including the Redbook survey, studies conducted during World War I, and Lin Farley's book. They argued that sexual harassment was "an expression of power by men over women in the employment context" (see Document 33B).
Other feminist groups took the concept of sexual harassment further. The Alliance Against Sexual Coercion complicated the concept of sexual harassment, suggesting that the guidelines should clearly state that sexual harassment may not only be sex discrimination but may also be race discrimination (see Document 33C). They explained they had assisted black women who were targeted for sexual harassment based on their race in order to keep them in unequal positions in the white workplace, to encourage them to quit because "as black women they were not wanted in the workplace," or "because of myths and other discriminatory practices which made them seem to be more vulnerable targets." Women in the Trades argued that the guidelines should include age discrimination, which they believed often led to forms of sexual harassment (see Document 33D). The National Advisory Council on Women's Educational Programs argued that the guidelines should cover not only sexual behavior, but also "gender-charged" behavior, including denigration of women (or men) through sexist humor, remarks, or other activity creating "intimidating, hostile, or offensive working conditions," and reflecting an anti-woman (or anti-man) bias (see Document 33E).
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Comments on the Equal Employment Opportunity Commission's Proposed Amendment Adding Section 1604.11, Sexual Harassment, to Its Guidelines on Sexual Discrimination
JOAN VERMUELEN*
I. INTRODUCTION
On April 11, 1980, the Equal Employment Opportunity Commission (E.E.O.C.) issued guidelines, to take immediate effect, concerning sexual harassment on the job. The guidelines were intended to reaffirm that sexual harassment was unlawful employment discrimination within the meaning of Title VII and to clarify the nature and extent of the employer's responsibility for job related sexual harassment.
Working Women's Institute submitted these comments to the E.E.O.C. during the sixty day period for public reaction to the guidelines. Following the period for public comment, the agency published final guidelines on November 10, 1980,1 incorporating certain changes suggested during the commenting process.
At the outset, it is important to express our overall support for the E.E.O.C.'s action in issuing guidelines on sexual harassment. Further clarification of what constitutes sexual harassment on the job and who is responsible for remedying it benefits both working women and employers; the guidelines can only add to the momentum created by the recent landmark decisions in Miller v. Bank of America,2 Tomkins v. Public Service Electric & Gas Co.,3 and Barnes v. Costle.4
The Commission has long been sensitive to the impact of sexual harassment in the employment context. It recognized early that sexual harassment was a form of employment discrimination and not simply a personal problem between a woman and her male supervisor and/or co-workers. That recognition was critical. Sexual harassment has a profound negative impact on a woman's productivity on the job as well as on her employment opportunities. It is precisely this dual harm to productivity and individual opportunity that Title VII was intended to remedy. The Commission showed great foresight when it recognized that sexual harassment was a form of employment discrimination, and when it subsequently extended that concept to include sexual harassment. This action has been very important to the efforts of women who are working to achieve equality of opportunity in employment.
Nevertheless, the members of the Institute believe that certain modifications need to be made in the proposed guidelines if they are to be an effective tool in the elimination of the sexual harassment of women workers. Before making specific
* Director, Working Women's Institute, National Sexual Harassment Legal Back-up Center; Acting Director of the Women's Rights Ligitation Clinic, Rutgers Law School 1981; J.D. 1975, Rutgers Law School, B.A. 1964, Mount Holyoke College.
1 EEOC Guidelines on Discrimination Because of Sex, 45 Fed. Reg. 74,676-677 (1980) (to be codified in 29 C.F.R. § 1604.11) [hereinafter cited as Guidelines].
2 600 F.2d 211 (9th Cir. 1979).
3 568 F.2d 1044 (3rd Cir. 1977).
4 561 F.2d 983 (D.C. Cir. 1977).
[Women's Rights Law Reporter, Volume 6, Number 4, Summer 1980] © 1981 by Women's Rights Law Reporter, Rutgers--The State University 0085--8269/81/117-285 §2.00
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comments on the Commission's proposal, it is necessary to set the socio-economic stage on which sexual harassment occurs, to provide a background for the discussion that follows, and to emphasize that promulgation of E.E.O.C. guidelines is imperative.
II. BACKGROUND
Sexual harassment in employment is any attention of a sexual nature in the context of a work situation which has the effect of making a woman uncomfortable on the job, impeding her ability to do her work, or interfering with her employment opportunities. It can be looks, touches, jokes, innuendoes, gestures, epithets, or direct propositions. In the extreme, it may be a direct demand for sexual compliance coupled with a threat of firing if the woman refuses. It is less obvious when a woman is forced to work in an environment in which she is subjected to stress or made to feel humiliated because of her sex through such activities as sexual slurs, the public display of derogatory images of women, or a requirement that she dress in revealing clothing. Sexual harassment is behavior which becomes coercive because it occurs in the employment context, thereby threatening both the woman's job satisfaction and security.
A brief glance at the position of women in the economic hierarchy will serve to explain their vulnerability to sexual harassment on the job. Women are overwhelmingly employed in low status, low-paying, dead-end jobs, primarily in the clerical (35% of all women workers) and service (19.6% of all women workers) areas.5 They constitute fewer than 3% of engineers, 5% of dentists, 11% of physicians, 13% of attorneys, 19% of scientists, and, perhaps most importantly, 25% of all salaried managers, officials, and administrators.6 Women earn §.59 for every §1.00 earned by comparably employed men; the gap between male and female earnings has not decreased since the passage of Title VII in 1964.7
In the context of employment realities of women, it would be hard to overestimate the far-reaching and pervasive impact that sexual harassment has had on circumscribing their work options and opportunities. Whether it takes place in the office or the factory, sexual harassment is the assertion of power by men over women who are perceived to be in a vulnerable position with respect to male authority.8 As an assertion of power,9 sexual harassment serves to reinforce the notion that if a woman values her psychological and physical integrity, she must function within certain limits, both in terms of work choices and personal behavior.
Sexual harassment is the quintessential expression of the stereotypic role expectations of both sexes.10 When a man sexually harasses a woman, he is saying that a woman's legitimate function is that of sexual object, thus denying her role as a contributing member of the workforce.11 This is dysfunctional for women workers in several respects.
5 BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, EMPLOYMENT AND EARNINGS 36 (May, 1980).
6 BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, EMPLOYMENT AND EARNINGS 174 (Jan., 1980).
7 WOMEN'S BUREAU, U.S. DEPT OF LABOR, THE EARNINGS GAP BETWEEN WOMEN AND MEN 6 (1979).
8 Margaret Crull studied the files of 92 women who had contacted Working Women's Institute for assistance with a sexual harassment problem on the job and found that more than 75% were single, separated, divorced or widowed; over 50% were the sole support of their families or themselves; 51% of those working full-time earned §150.00 or less per week before taxes; 53% were clerical workers; and 15% were service workers. M. CRULL, THE IMPACT OF SEXUAL HARASSMENT ON THE JOB: A PROFILE OF THE EXPERIENCES OF 92 WOMEN, WORKING WOMEN'S INSTITUTE, RESEARCH SERIES, REPORT No. 3 (1979) (hereinafter cited as CRULL). These findings are consistent with those of many Fair Employment Practices agencies which responded to a 1977 Working Women's Institute survey. See RESPONSES OF FAIR EMPLOYMENT PRACTICES AGENCIES TO SEXUAL HARASSMENT COMPLAINTS: A REPORT AND RECOMMENDATIONS, WORKING WOMEN'S INSTITUTE, RESEARCH SERIES, REPORT No. 2 (1978).
9 Erving Goffman has written that superiors often show familiarities toward subordinates, which the subordinates are not allowed to reciprocate. Such familiarities include touching, teasing, informal demeanor, using familiar address, and asking for personal information. Goffman, The Nature of Deference and Demeanor, LVIII AMERICAN ANTHROPOLOGIST 473 (1956). Another commentator has studied interaction between men and women and has concluded that power is communicated to another by bodily contact, physical proximity and position, gestures, posture, nodding or smiling, and silences or interruptions. M. ARGYLE, PSYCHOLOGY OF INTERPERSONAL BEHAVIOR (1967). See also N.M. HENLEY, BODY POLITICS: POWER, SEX AND NON-VERBAL COMMUNICATION (1977).
10 Sexual harassment is a stereotypic expression of woman as a sexual object and man as a sexually predatory being exercising his time-honored right of sexual initiative and control over the weaker, more vulnerable sex. See R.K. UNGER, FEMALE AND MALE: PSYCHOLOGICAL PERSPECTIVES (1979).
11 Evans, Sexual Harassment: Women's Hidden Occupational Hazard, reprinted in THE VICTIMIZATION OF WOMEN 203-223 (Chapman & Bates eds. 1978).
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First, sexual harassment challenges a woman's right to function as a worker by underscoring the socially imposed incongruity between the roles of woman and worker and causes her to experience conflict, tension, and stress which may well interfere with her work performance. To the extent that a woman internalizes this role conflict, it will affect her motivation and her belief that she can advance up the career ladder, thus preventing her from applying for promotions or openings that are perceived to be men's jobs.12 Further, reinforcing the primacy of a woman's sexual identity to her male colleagues will make it less likely that she will be viewed as capable of undertaking demanding work and, consequently, will make it less likely that she will be given demanding projects. Finally, to the extent that a woman is able to continue to function and, indeed, to succeed in such an atmosphere, her male colleagues are likely to attribute such success to sexual manipulation and to avoid acknowledging her ability as a worker.
An example of this syndrome can clearly be seen in the experiences of women who have obtained work in traditionally male-dominated trades. Female craft apprentices report having experienced a combination of sexual advances, allusions, teasing, jokes, horseplay, crude comments, and even physical assaults from their fellow workers. At the same time, they complain of minute scrutiny of their work and sexually motivated behavior in the guise of "chivalry" which is used to deny them the opportunity to participate in work assignments.13
Sexual harassment may take the form of a direct proposition from a superior, with firing the penalty for refusal. However, termination is not the only probable penalty and others may include negative job evaluations, poor personnel recommendations, denial of overtime, demotions, injurious or undesired transfers, reassignment to less desirable shifts, hours, or locations of work, loss of job training, and impossible performance standards.
The situation is equally serious when the harassment comes from co-workers. Peers can exert tremendous power over a woman's ability to remain on the job. They can sabotage work directly and indirectly. Even absent such overt undermining efforts, peers can render the work environment so tense, intolerable, and hostile that a woman is forced to leave the job.
Clients and customers are also a frequent source of sexual harassment. This is often caused by an explicit requirement by the employer that a woman wear revealing clothing or that she acquiesce in the permissive environment of the work-place. Harassment from this sector is similar in its impact to harassment from co-workers. The work environment becomes increasingly stressful and degrading, interfering with a woman's job performance and often resulting in her departure from the job.
Sexual harassment, therefore, impedes equal employment opportunity directly, by conditioning advancement or continued employment on the acceptance of explicit propositions for sexual compliance, and indirectly, by denying women work opportunities or by actively impeding the performance of their jobs through non-cooperation, sabotage, or the creation of a misogynous work environment.
The experience of sexual harassment on the job has had a substantial negative impact on women's ability to achieve economic equality. Margaret Crull's study,14 undertaken for Working Women's Institute, found that 24% of the women responding were fired for refusing to cooperate sexually or for complaining about the sexual harassment they had experienced. Another 42% eventually resigned from their jobs, either because they could not stop the harassment or because their complaints led to retaliation, such as negative performance evaluations, excessive work loads, and denial of promotions.
The significance of these figures deserves emphasis. Sexual harassment contributes to the higher rate of female unemployment,15 and women's lower rate of continuous employment,16 with the attendant consequences of failure to advance on the job or to receive on-the-job training,
12 See R. KANTER, MEN AND WOMEN OF THE CORPORATION (1977).
13 See Goodman. Sexual Demands on the Job, 4 CIV. LIB. REV. 55-56 (1978).
14 CRULL, supra note 8, at 4.
15 BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, EMPLOYMENT AND UNEMPLOYMENT DURING 1978 A-5 (Special Labor Force Report No. 218) (1979).
16 U.S. DEP'T OF LABOR, HANDBOOK ON WOMEN WORKERS (1975) (indicating that women averaged only 2.8 years of continuous service with the same employer, whereas men averaged 4.6 years).
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loss of non-transferable fringe benefits, and failure to accumulate seniority rights.
Sexual harassment also interferes with a woman's ability to perform her job when she chooses not to quit. It effects a cumulative disadvantage on her as she must devote time and energy that could otherwise be expended on her work to handling advances, remarks, and other harassing situations. Crull's study found that 83% of the respondents felt that sexual harassment had interfered in some way with their ability to work. Some suffered a loss of self-confidence because they had come to doubt their ability to handle themselves professionally and socially. Many began to dread going to work and lost their desire to be successful.17 The result, therefore, for the woman who remains on the job is a double bind. The people who teach her and who evaluate her, along with her co-workers, are the very people she must avoid.
Women who are the victims of sexual harassment experience symptoms similar to those experienced by persons working under conditions more commonly understood to cause stress, such as poor lighting, speed-up, and inadequate ventilation.18 Psychological symptoms include feelings of powerlessness, fear, anger, nervousness, decreased job satisfaction, and diminished ambition. These were reported by 96% of the women in Crull's study. Twelve percent of those respondents sought therapeutic help; 63% experienced physical stress symptoms, such as headaches, nausea, and weight change.19
Sexual harassment is both an occupational health hazard and an economic barrier for women. It has operated to confine women to traditionally female jobs and to keep them out of non-traditional jobs. It is deeply rooted in our popular culture, and the resistance to viewing it seriously as a substantive employment barrier for women remains strong. This is so despite the fact that sexual harassment has a pronounced impact on reducing women workers' job effectiveness and productivity. Sexual harassment harms the individual, the employer, and society. Women are frustrated in their attempts to obtain meaningful work and equal economic and employment opportunities; the employer is denied the full efficiency and productivity of its female workforce; and, society loses the special contribution that individual women workers can make. It is therefore essential that the responsibility for remedying sexual harassment be clearly and appropriately delineated and strictly enforced.
III. COMMENTS ON PROPOSED GUIDELINES
A. § 1604.11(a)
Harassment on the basis of sex is a violation of Section 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 substantially agree with Section 1604.11(a). It is useful that the Commission has divided the concept of sexual harassment into categories which set forth the spectrum of conduct covered by these guidelines. In particular, we support the inclusion of subsection (a)(3), which recognizes that unsanctioned sexual harassment can lead to "working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability" of women workers.20 Many courts have accepted that psychological conditions of employment can amount to discrimination.21 The determination as to
17 CRULL, supra note 8, at 4.
18 See STELLMAN & DAUM, WORK IS DANGEROUS TO YOUR HEALTH (1973).
19 CRULL. supra note 8, at 4.
20 Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971), rehearing denied January 31, 1972.
21 See, e.g., Cariddi v. Kansas City Chiefs Football Club Inc., 568 F.2d 87 (8th Cir. 1977); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977); Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C. Cir. 1976); United States v. City of Buffalo, 457 F. Supp. 612 (W.D.N.Y. 1978 modified and aff'd 633 F.2d 643 (2d Cir. 1980); Croker v. Boeing Co. (Vertol Div.), 437 F. Supp. 1138 (E.D.Pa. 1977); Compston v. Borden, 424 F. Supp. 157 (S.D. Ohio 1976); Murray v. American Standard, Inc., 373 F. Supp. 716 (E.D. La.) aff'd 488 F.2d 529 (5th Cir. 1973).
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whether a practice is discriminatory should turn on the psychological debilitation that flows from the environment. The stress produced by sexual harassment on the job debilitates a woman mentally, physically, and economically. Therefore, one of the employment practices proscribed by Title VII should be the maintenance of a work atmosphere polluted by sexual harassment, even absent a specific economic sanction directed at a particular woman.22
Subsection 1604.11(a)(3), however, is ambiguous in two respects and should be revised. First, the word "substantially" should be deleted. To establish harassment, it should be sufficient that the conduct complained of interferes with a woman's work. She should not have to wait until her work performance has reached the point of substantial deterioration before the work environment is recognized as discriminatory. By that time, the psychological damage that she has suffered may have permanently affected her ability to do that particular job. Even absent serious work deterioration, women will not perform as efficiently while expending energy contending with sexual harassment. Thus, the employer and society also suffer harm. Society will no longer tolerate a small amount of race discrimination on the job; it should not tolerate a small amount of sexual harassment, either. Requiring a showing of substantial interference could render virtually untouchable a course of conduct consisting of sexual innuendoes, jokes, and teasing. It is far more efficacious for all concerned to eradicate conduct of this type at the outset and, indeed, it is fully consistent with the objectives of Title VII to do so at once. Since the Commission obviously understands the negative impact of sexual harassment on individual employment opportunities and productivity, the guidelines should not require a substantial deterioration in work performance before a woman may take action to challenge a discriminatory work environment. Elimination of the word "substantially" will then clarify what constitutes impermissible interference with work performance.23
Second, to avoid ambiguity the word "stressful" should be added to subsection (a)(3) so that it reads: "(3) … or creating an intimidating, hostile, offensive or stressful working environment." Women commonly develop stress symptoms as a result of job-related sexual harassment. Although it seems logical that stress was intended to be included in the concept of "offensive," we believe that it will avoid confusion to recognize it specifically.
Another ambiguity in Section 1604.11(a) merits clarification. In its definition of actionable sexual harassment, the Commission does not make specific reference to non-verbal conduct which sexually harasses, intimidates, degrades, or embarrasses women employees. Examples of such conduct include leering, ogling, making obscene gestures, and placing nude or pornographic pictures of women in visible areas of the workplace. Other examples include displaying obscene cartoons and other drawings which are intended to humiliate, embarrass, or degrade women; showing stag movies on the job or in job related settings; and publicly circulating jokes and other printed matter which degrade women on the basis of their sexuality. Such conduct need not be directed toward a particular woman. It is sufficient that the conduct offends women employees by creating a stressful work atmosphere which degrades and humiliates women, or by relegating them to an inferior status as a class.
This type of non-verbal conduct has been held to constitute employment discrimination when race is involved. In United States v. City of Buffalo,24 the court cited the following non-verbal conduct as contributing to a work environment heavily charged with racial discrimination: racially derogatory materials, such as a drawing of a hooded rider with the legend "KKK Lives" displayed in work areas; the wearing of "Wallace for President" buttons by on-duty white police officers; a picture of Martin Luther King and his family with the words "A bunch of niggers" written across it posted in the work area; and a picture of Dr. King with a hole cut in his head and a live bullet placed in it on public display in the precinct house.25 It is not difficult to imagine analogous conduct targeted at women employees.
22 See Bundy v. Jackson 641 F.2d 934 (D.C. Cir. 1981).
23 In the final guidelines issued by the agency, the word "substantially" was replaced by "unreasonably," Guidelines. supra note 1, at 74, 677.
24 457 F. Supp. 612 (W.D.N.Y. 1978).
25 Id. at 632-36.
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It is arguable that much of the conduct mentioned above is verbal. The line between verbal and non-verbal conduct is often difficult to draw. Since the Commission has recognized that a working environment polluted with sexual harassment is discriminatory, it follows logically that such conduct, whether verbal or non-verbal, is intended to be included. However, for the purpose of making absolutely clear to all concerned what types of conduct constitute sexual harassment, the Commission should add the word "non-verbal" so that the language of Section 1604.11(a) reads: "… and other verbal, non-verbal or physical conduct of a sexual nature. …" The Commission should at least indicate in the Supplementary Information that non-verbal conduct is included in the definition of actionable sexual harassment.
B. § 1604.11(b)
In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and 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 support this section and consider it the appropriate manner for investigating all charges of employment discrimination, including those of sexual harassment. We are particularly pleased to see that the Commission used the broad term "conduct," which makes clear that the guidelines are not to be restricted to "advances" and "incidents." Although perhaps not directed toward a specific woman, behavior that causes stress, humiliates, intimidates, or degrades women employees is also proscribed.
C. § 1604.11(c)
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 strongly support this section. Holding the employer absolutely liable for the acts of sexual harassment committed by its agents and supervisory employees is both fair and essential to the effective enforcement of Title VII. Any advance made by a person with power over a woman's job is inherently coercive. The courts have long recognized that little, if any, progress will be made toward eradicating employment discrimination if an employer is able to avoid liability by raising the shield of individual employee action.26 Similarly, strict employer liability is equitable, since agents and supervisory personnel are within the direct control of the employer. Moreover, the employer clearly benefits from its ability to delegate the power to make personnel decisions to supervisory employees.
We further endorse the Commission's intention to look at the underlying work relationship between the parties instead of relying on formal job titles. Authority in the workplace is often exercised without consideration of formal job designations.
D. § 1604.11(d)
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.
The question of the employer's responsibility for sexual harassment by co-workers and other persons involved with the work situation, such as customers and clients, is a critical one. While co-workers are not able to fire, demote, transfer, or withhold promotion, they are perfectly capable of making it difficult, if not impossible, for a woman
26 See, e.g.; Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979); Tidwell v. American Oil Co., 332 F. Supp. 424 (D. Utah 1971).
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to do her work and, indeed, of forcing her to leave the job. The impact of co-worker harassment on a woman's job productivity is at least as extensive as that of supervisory personnel. It is arguably even greater, as a woman must often rely on the cooperation and support of her co-workers to learn her job and to do it properly.
The definition of sexual harassment set forth in Section 1604.11(a) includes conduct which interferes with work performance or creates an intimidating, hostile, or offensive work environment. The Commission, therefore, recognizes the seriousness of co-worker harassment. Given this recognition, and the Commission's determination that an employer is absolutely responsible for acts of sexual harassment by supervisors and agents, it is inconsistent for the Commission to adopt a different standard of liability when the harassment comes from co-workers. The guidelines do not refer to any legal principle which would support such a differentiation. In fact, an examination of the impact of co-worker harassment on women's employment opportunities and a recognition of the employer's ability to effectively eradicate this form of discrimination mandate that the employer's responsibility for co-worker harassment be as broad as its responsibility for supervisors and agents.
Co-worker harassment can be put on a continuum of conduct ranging from work harassment at one end to sexual harassment at the other. Particularly vivid examples can be found in those work situations where women are integrating trades, professions, or jobs generally reserved for men. Women coal miners report an extremely high incidence of sexual harassment on the job, including physical assault, verbal provocations and slurs, propositions, and repeated incidents of male genital exposure in the mine tunnels. They also report work harassment in the form of regular assignments to unwanted or unsafe jobs, and complain of co-workers' remarks that women do not belong in the mines and are "walking accidents." Women are almost forced to make these remarks ring true when they are assigned to the most injury-prone jobs.27
This kind of harassment is not confined to blue collar work. Women integrating management positions formerly held by men complain of work harassment ranging from exclusion from communication channels to being given insufficient or incorrect information.28 They also report work pressures arising from the necessity of contending with requests for dates from superiors, co-workers, and clients.29
The woman who is integrating a traditionally male dominated job in either the white or blue collar sector is particularly dependent on management to secure her smooth entry into her new position. If the employer undertakes an affirmative action program to assist her at the beginning, a woman will have a better opportunity to prove herself capable of doing the work. Such a program would include both an articulated policy against sexual harassment and an appropriate grievance procedure for receiving complaints, carrying out investigations, and effecting appropriate sanctions when necessary. If integration is undertaken with sensitivity, the attitudes of male colleagues are likely to change. Indeed, this was the conclusion of a Department of Labor study, which found that when a serious commitment was made by management to bring women into the work force in non-traditional female jobs, accompanied by a strong affirmative action program which gave the women the opportunity to work with their male colleagues in a neutral environment, the attitudes of supervisors, peers, and subordinates changed positively.30
It is evident that an employer has the capacity to effectively eliminate sexual harassment perpetrated by co-workers. Furthermore, it is in its best interest to do so. Elimination of harassment will result in greater productivity from female workers and will provide the company with a larger labor pool from which to hire competent personnel. These factors argue for placing the responsibility for co-worker harassment with the employer.
Public policy considerations support the proposition that the employer should be responsible for sexual harassment perpetrated by co-workers regardless
27 The New York Times, November 11, 1979, § 1, at 30, col. 6.
28 EMPLOYMENT AND TRAINING ADMINISTRATION, U.S. DEP'T OF LABOR, WOMEN IN TRADITIONALLY MALE JOBS: THE EXPERIENCE OF TEN PUBLIC UTILITY COMPANIES 14, 42 (B & D Monograph No. 65) (1978) (hereinafter cited as W.T.N.J.).
29 The Wall Street Journal, January 29, 1976, at 1, col. 4.
30 W.T.N.J., supra note 24, at 4, 10, 17, 73.
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of whether it knew or should have known of such harassment, and whether the harassment was in violation of company policy. The employer is clearly in the best position to prevent sexual harassment by taking appropriate care in selecting, training, and establishing rules for its employees. The situation is analogous to that of workers' compensation, where society has acknowledged that the employers' absolute liability for employment-related accidents is the best way to encourage the introduction of preventative rules which reduce the number of accidents. In both cases, prevention is the ultimate goal.31
Costs stemming from discrimination may, to a certain extent, be inevitable as society moves toward a world free from sex-based bias. Given the commitment to making that transition expressed in Title VII, it seems essential to acknowledge that there will be costs and to determine who is in the best position to assume them. It is clearly inequitable to have these costs borne by the members of the historically disadvantaged group. Strict liability is even more appropriate in those situations where the employer has required, as a condition of work, something degrading to women as a class, such as the wearing of revealing attire.
In light of the importance given to its interpretation of Title VII, we urge the Commission to follow the dictates of its own logic and to revise § 1604.11(d) to hold the employer absolutely responsible for acts of sexual harassment by co-workers and other persons in the context of the work situation. This responsibility should be precisely the same as that for supervisors and agents.
If the Commission retains this dual concept of employer liability, we consider the question of sexual harassment by co-workers and other persons sufficiently serious to require that we address certain other problems in § 1604.11(d) as it now stands. First, the Commission should give examples of who is covered by this section. This would certainly include, but not be limited to, co-workers, customers, clients, subordinates, and members of the general public.32
Second, the term "workplace" is too limited, and should be changed. We suggest substituting the phrase "context of the work situation." Sexual harassment need not occur in the actual work-place to be job related. It commonly takes place outside the workplace, but on the job; for example, at a conference or job training course. It can also occur outside the workplace, but in a work-related situation such as a business lunch. It can even occur totally outside work, for example, an unconsented to visit to a woman's home. In an analogous situation, the court in United States v. City of Buffalo,33 found the verbal harassment of two off-duty black police officers by white police officers to be an incident of actionable race discrimination. Similarly, in Miller v. Bank of America,34 the court recognized as actionable employment discrimination sexual harassment which had occurred in a woman employee's home.
Third, the phrase "knows or should have known" should be liberally construed and the scope of this construction indicated. It is the Institute's position that, because sexual harassment is such a widespread, pervasive phenomenon that has received so much public attention in recent years, all employers should be on notice that sexual harassment is occurring within their workforce. The burden should be on the employer to show by conclusive evidence that its situation was sufficiently unique to preclude such notice. At a minimum, the phrase "knows or should have known" must incorporate situations such as women integrating traditionally male fields or jobs, women being forced to wear revealing clothing, and women attending conferences or traveling as part of their jobs. The employer must be deemed to be on constructive notice that there is a high probability of sexual harassment in such situations.
31 See Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination. 21 B.C.L.REW. 345, 378-79 (1980).
32 In the final version of the guidelines, the Commission rewrote § 1604.11(d), creating two new sub-sections, delineating the employer's responsibilities for sexual harassment by fellow employees and non-employees. With respect to co-workers, the employer will be liable for "acts of sexual harassment in the workplace" about which it "knows or should have known," unless "immediate and appropriate corrective action" is taken. Guidelines, supra note 1, at 74.677. Under § 1604.11(e), the employer may also be responsible for the sexual harassment of employees by non-employees where it has actual or constructive knowledge of the conduct and has failed to take immediate, appropriate corrective action. In determining the employer's liability for non-employees, consideration will be given to the extent of the employer's control and any other legal responsibilities it might have concerning the conduct of these non-employees. Id.
33 457 F. Supp. 612 (W.D.N.Y. 1978).
34 600 F.2d 211 (9th Cir. 1979).
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The phrase should also incorporate all circumstances where an agent or supervisory employee has witnessed or participated in the sexual harassment of female employees. Additionally, it should be construed to include having knowledge of non-verbal conduct which is sexually harassing.
Finally, the language of this section should be amended to substitute "effective" for "appropriate." In order to rebut apparent liability, an employer should be required to show that the corrective action it took was "immediate and effective corrective action." Procedures which may be mechanically followed, but which have no real impact on preventing sexual harassment, are not sufficient. Action which shows a real commitment or intention on the part of the employer to end discriminatory conduct is imperative. It would be useful for the E.E.O.C. to give examples of what is considered to be "effective corrective action." The Commission should require every employer to circulate a notice throughout its workforce concerning sexual harassment. The notice should set out examples of conduct that constitute sexual harassment, indicating that it is illegal and will not be tolerated. The notice should make it clear that all allegations of sexual harassment will be seriously and thoroughly investigated and that sanctions will be imposed where allegations have been substantiated. Absent such notification, an employer should under no circumstances be able to rebut liability.
E. § 1604.11(e)35
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 support this section. However, certain steps essential to the eradication of sexual harassment on the job, omitted from the Commission's list of suggested actions, should be added. These steps include: developing a policy statement concerning sexual harassment as employment discrimination; creating on-going training programs for both current and future employees concerning sexual harassment; instituting a grievance procedure with a known investigatory mechanism for the prompt handling of complaints of sexual harassment; and immediately disciplining any employee found to have engaged in sexual harassment, regardless of that person's position in the company hierarchy.
The Commission should make it clear that taking these steps alone will not enable an employer to avoid liability should the sexual harassment of women workers continue to occur.
IV. CONCLUSION
We strongly support the Commission's decision to promulgate guidelines on sexual harassment, declaring it to be employment discrimination and not personal conduct, and indicating who is responsible for its eradication. If amended to include our recommended changes, these guidelines will be a major step toward eliminating this invidious form of sex discrimination in employment. We strongly urge the Commission to issue final guidelines incorporating our suggestions so that women may look forward to a time when equal employment opportunity will be a reality.36
Postscript
The E.E.O.C. received 162 comments on the interim guidelines. The vast majority of these
35 Now § 1604.11(f). Guidelines, supra note 1, at 74,677.
36 In the final guidelines the Commission added a new section, § 1604.11(g):
Other related practices: Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.
Guidelines, supra note 1, at 74,677.
This section appears to be in response to comments by various federal agencies, which, taking the lead of the Office of Federal Contract Compliance Program, felt this to be necessary to provide complete protection from sexual harassment to all members of the workforce. The late addition of this section is somewhat puzzling. It was not necessary because the group of individuals it purports to cover would have been protected under Title VII. Unfortunately it creates the impression that while some women have been harmed by sexual harassment others have benefitted from it. In view of the overwhelming negative impact that sexual harassment has had on women's employment opportunities, such an implication is cruel indeed.
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came from employers, their representatives, or organizations. With the exception of a small number of obvious cranks, all of the commentators acknowledged that sexual harassment was a serious problem in the workforce. The employers' problems with the guidelines focused on what their responsibility, if any, should be. In particular, they were unequivocally opposed to absolute employer liability for sexual harassment by supervisory and other management personnel. From their perspective, liability should arise only in those instances where the employer had actual knowledge of sexual harassment and failed to act to eliminate it. Indeed, some took the position that an employer should be able to avoid liability altogether where it had developed policies or mechanisms, such as those suggested in the guidelines, for preventing sexual harassment. There was also strong opposition to characterizing an "intimidating, hostile or offensive" work atmosphere as an example of sexual harassment. Much of the opposition was premised on the belief that work environment does not have an adverse impact on employment.
The response from employers indicates confusion concerning the type of relief available under Title VII. These remedies are exclusively equitable in nature and are intended to make the aggrieved individual whole in the context of the employment situation. Thus, relief is limited to reinstatement, hiring, back pay, and appropriate injunctive relief. That neither compensatory or punitive damages are available has been a concern of women's advocates because of the degree of psychological harm which often results from sex discrimination, particularly sexual harassment. Given the nature of the relief provided by the statute, it is difficult to conceive who, besides the employer, is able to provide relief. In this light, the resistance on the part of employers to acknowledge their responsibility for eliminating sexual harassment reflects their inability to understand that sexual harassment is indeed employment discrimination.
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