Sexual Harassment and the Law

Understanding Laws and Their Role

Sexual harassment developed a legal standing and recognition later in its history. Since then, there have been numerous laws and regulations developed and passed on the state and federal levels that prohibit sexual harassment in the U.S. Many of these are applicable to the workplace, even if that was not their original intent, and will likely be cited in instances where legal action is taken. As a result, developing an understanding of these laws and what they entail is needed.

This article will look at the legal aspects of sexual harassment in the workplace, especially the laws covering it. Each law will be explained regarding what it does in general and how it can be applied to sexual harassment. Those listed here are going to be on the federal level, although there may be variations and modifications made by different states that will be noted where appropriate. This lesson will cover the primary laws that play a role under general circumstances and does not include those that may come into effect under certain situations.

The Civil Rights Act of 1964 and Title VII

The Civil Rights Act is the primary law on the federal level pertaining to harassment and discrimination and Title VII is the section that applies it to the workplace. When filing legal claims of sexual harassment, this is the law that is applied to determine the legalities of the situation and the extent of the penalties that will be administered. The law also covers any kind of harassment or discrimination that may occur in any kind of public or professional setting, including age, race, gender, ethnicity, religion, and immigration status. At this time, the law does not include sexual orientation but there have been attempts to change that. It is possible that an instance of sexual harassment may involve other forms of harassment and discrimination, which would expand the application of the Civil Rights Act and its provisions.

As the country and the workplace has changed since 1964, the law has been changed in order to keep it current. This has been done with the passing of additions and amendments to the law, as well as additional laws that apply co-currently with the act. A few of the modifications include the following.

The Rehabilitation Act of 1973 -- Title VII originally was only applicable to non-federal public employees and those working for private companies. This meant that government employees on the state and federal levels were not protected in any way beyond simple office policies if there were any. The Rehabilitation Act changed that by extending Title VII to the federal government and providing protection for federal employees. This amended the details of the existing law instead of legislating a nearly identical law for a small group.

Nineteenth Century Civil Rights Act -- The Nineteenth Century Act was an amendment to the Civil Rights Act of 1964, Title VII, the Americans with Disabilities Act, and the Rehabilitation Act in 1993. It also impacted an older law, the Civil Rights Act of 1866, that was still active and still being used in some cases. The NCCRA made adjustments to ensure that all persons experiencing harassment or discrimination were able to use any of these laws. Basically, it helped eliminate any discrimination in the anti-discrimination laws. It also outlined what damages or compensation victims could expect under any of those laws as well.

The Pregnancy Discrimination Act -- Sexual harassment can often be extended to instances of sex and/or gender-related harassment. For women, this can include aspects of their reproductive health like pregnancy and is found in modified sections of Title VII on sex and/or gender discrimination. This has become known as the Pregnancy Discrimination Act or PDA. It prevents employers from discriminating against employees for pregnancy, childbirth, and maternity care or other related medication conditions. For example, an employer cannot refuse to hire a pregnant woman simply because she is pregnant nor can they fire an employee for becoming pregnant. Likewise, employers cannot force pregnant employees into taking leave due to their pregnancy or punish them for missing work due to their pregnancy, including having doctors appointments, the actual birth, etc.

The Civil Rights Act of 1991 -- This was another expansion of the law that added additional protections for victims. Under this expansion, victims who are taking legal action against someone like harassers, employers, etc. regarding workplace harassment to have the option of a jury trial and collect financial compensation and damages. Before this, victims were limited to options, such as arbitration, which is a non-court lawsuit option for dispute resolution, where the potential outcome might not be in favor of the victim or even enough for the circumstances.

It should be noted that the Civil Rights Act does focus on sexual harassment as two types--quid pro quo and hostile environment. Quid pro quo, meaning "this for that," is the form in which the victim is threatened or demanded upon as a part of an exchange like sexual favors as discussed in previous lessons. Hostile environment applies to instances where the environment of the workplace was made to be unwelcoming based on the sex of the victim, and may even be categorized as abusive. Both types can include the forms discussed earlier in the course including physical or verbal harassment.

Interested in learning more? Why not take an online Workplace Sexual Harassment in the #MeToo Era course?

The Supreme Court: Meritor Savings Bank v. Vinson

A lawsuit rather than a law, Meritor Savings Bank v. Vinson involved sexual harassment and hostile work environments that were in violation of the portion of the Civil Rights Act of 1964 and Title VII that prohibit sex discrimination. The plaintiff in the case, Mechelle Vinson, had alleged that she had been the victim of quid pro quo harassment by her supervisor at Meritor Savings Bank over the course of four years (1974-1978) before being fired. The bank alleged that they knew nothing of her supervisor's actions and denied that anything was wrong with what had happened during that time because she ultimately consented to the harassment including sexual intercourse, albeit out of fear for her career and safety. The laws at the time did not support Vinson's claim and she lost her initial case before being appealed and tried up the legal chain to the U.S. Supreme Court. The 9-0 ruling by the Court in 1986 made sexual harassment in the workplace a legal offense and also identified much of the legal criteria for claims to be filed and judged in court.

The Violence Against Women Act of 1994

The Violence Against Women Act is a law that focuses on sexual harassment and violence both inside and outside of the workplace. This includes instances of domestic violence, sexual assault, street harassment, and stalking. With regard to how it is applied in the workplace or in cases of work-related sexual harassment, VAWA impacts this sexual history of victims and limits the amount of liability that information places on them in their case. This means that harassers cannot use information pertaining to their victims relationship history, such as a romantic relationship with a co-worker-sexual history, for example, a number of past partners, or past, non-related instances of sexual harassment.

VAWA as a whole offers legal protections and prevention measures against sexual harassment including funding for counseling and recovery services. The law has been revisited twice for expansions and amendments--in 2000 and in 2005. VAWA expired in 2011 and conflict over renewal broke out in Congress over certain provisions in the law. These provisions would have expanded VAWA to cover same-sex couples and offered the option for temporary visas to undocumented immigrants who experience domestic violence, sexual harassment, and assault. The law was eventually renewed with the new provisions and coverage in 2013.

Office on Violence Against Women -- OVW is a Department of Justice (DOJ) office that was created as a part of VAWA and was eventually established as a permanent DOJ office. The office handles much of the DOJ's enforcement of VAWA as well as the management and distribution of its funding. The programs associated with VAWA are organized and created by this office, including crisis centers and educational programs.

The Congressional Accountability Act

While the Rehabilitation Act of 1973 expanded the Civil Rights Act's protections to federal employees, most politicians were legally exempt from adherence to these laws. Strange, right? In 1995, the Congressional Accountability Act (CAA) was passed and made several existing laws applicable to members of the legislature. This included laws pertaining to workplace safety and health, labor, and civil rights laws that were pertinent to the workplace. CAA also created the Office of Compliance (OOC) that serves as the enforcement and administrative organization for these laws in Congress. It is designed to be an independent organization within the legislative branch of the federal government and is non-partisan. Congressional employees, meaning politicians and their staffers, are able to use the OOC's services throughout the country.

Anti-Retaliation Laws

There is a rather significant issue with workplace harassment that does have its own series of laws that may help in appropriate cases. Many victims are often afraid of retaliation from their harassers and/or employers for speaking out, which is one of the suspected reasons behind underreporting. Retaliation in the workplace in and of itself is also considered a form of harassment and discrimination, which means it is considered illegal under many anti-harassment laws. This includes the Civil Rights Acts of 1964 and its provisions. Claims of retaliation can be filed in the same way as claims of sexual harassment and the cases may sometimes be combined due to their circumstances.

But what is retaliation? Typically, workplace retaliation is defined as unnecessary or unreasonable punishment for an employee's actions. This can include firing them but also further harassment, demotions, pay reductions, negative evaluations, and other disciplinary measures within the business. Retaliation can be done intentionally as well as unintentionally. Employers and supervisors who have good intentions behind their actions accidentally create a negative effect on the victim. An example would be moving a victim of sexual harassment to a different office, department, etc. in order to get them away from their harasser. The victim is the one that has their situation altered further instead of their harasser even though the action is done in an effort to help them and their situation. There is also the possibility of coincidence, such as an employee being legitimately punished for something they did right about the same time they file a formal claim of workplace sexual harassment. With both examples, you can see how the events might be seen as punishment for reporting the harassment, even if that was not the employer's intention.

State Level Laws

There are also numerous workplace-related laws pertaining to harassment and discrimination in general that may be applicable for instances of sexual harassment. At this time, there are 34 states plus the District of Columbia that have general state-wide workplace protection laws in place regarding discrimination and harassment.

Alaska
Arizona
California
Colorado
Connecticut
Delaware
Hawaii
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Missouri
Montana
Nevada
New Hampshire
New Jersey
New Mexico
New York
Ohio
Oregon
Pennsylvania
Rhode Island
Vermont
Virginia
Washington
Wisconsin

As of 2017, Florida, Idaho, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming also have state-level anti-discrimination laws in addition to the existing federal laws that may be applicable in certain cases of sexual harassment. North Carolina does have such laws but they require group filings, meaning multiple victims file a legal claim together. They also have the option to file in court a "public policy" claim regarding the discrimination laws of the state, which is also an option in Ohio and West Virginia. The only states who do not have any state-wide laws pertaining to any kind of harassment in the workplace outside of the federal ones are Alabama, Arkansas, Georgia, and Mississippi. It is possible that there may be laws on the county, municipality, or local levels in all fifty states as well that would be relevant.