Bucks Writs - Winter 2018 - 13

t should not come as a surprise to anyone
that sexual harassment is still rampant
in the American workplace.
It periodically surfaces in the public consciousness because
of high-profile cases, perhaps more so recently than in the
past. But Harvey Weinstein and Matt Lauer are not isolated
instances of poor behavior. There are women in every walk
of life, from housekeepers to administrative assistants to, I
daresay, paralegals and attorneys who are being subjected
to some form of sexual harassment on a regular basis.1

More than a decade after its landmark decision in Meritor
Savings Bank, the Supreme Court spoke again on sexual
harassment in two cases, Burlington Industries v. Ellerth,
524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998). In these cases, the Supreme Court
established an "affirmative defense" or shield from liability
for employers who develop and implement an anti-harassment policy in the workplace. An employer may
escape liability if it can demonstrate it exercised reasonable
care to prevent and promptly correct harassing behavior
and the employee unreasonably failed to take advantage
of the preventive or corrective measures. In plain English,

More than thirty years ago, The United States Supreme
Court established guidelines to define illegal sexual
harassment in a case called Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986). Sexual harassment is a form
of sex-based discrimination prohibited by Title VII of the
Civil Rights Act of 1964. Any form of unwelcome sexual
advances, requests for sexual favors, or verbal or physical
conduct of a sexual nature may constitute harassment.
In Meritor Savings Bank v. Vinson, the Supreme Court
identified two categories of sexual harassment. The first,
quid pro quo harassment, occurs when the harasser
attempts to make a subordinate employee's submission to
sexual demands a condition of the job. It can involve either
promises of advancement and other perks in exchange
for submission or the threat of negative consequences
including discharge if the employee refuses.

Harassing behavior may include off-color
jokes, unwanted touching like pinching or
slapping of buttocks or even hugs, sexual
remarks, non-verbal behavior such as lurid
staring, winks, and circulation of emails
and images with sexual content.
the Supreme Court required employers to train supervisory
personnel at a minimum, provide effective methods for
employees to report complaints, and communicate the
policy's provisions to all employees so that employees
will come forward if harassment occurs. Employers
that heed the Supreme Court's directives will not be
held liable for the harassing conduct of its employees it
was not aware of.

More common today is the second category: the hostile
work environment. A hostile work environment typically
arises over a period of time from repeated acts. Harassing
behavior may include off-color jokes, unwanted touching
like pinching or slapping of buttocks or even hugs, sexual
remarks, non-verbal behavior such as lurid staring, winks,
and circulation of emails and images with sexual content.
A hostile work environment may also arise from one severe
event such as a physical assault. The courts will review each
case on its own facts. An employer who becomes aware of
harassment and chooses to look the other way may pay a
heavy price later on.

It is a rare employer in America today that does not have
some form of anti-harassment policy, and many require
training. The problem in the American workplace is not a
lack of awareness of what constitutes sexual harassment
or that it is illegal. The problem, and therefore the cause
of the continued prevalence of sexual harassment in the
workplace, is the employer's lack of will to follow through
with enforcement of the very "zero tolerance" policy it
professes to uphold when sexual harassment occurs.2

1 While there certainly can be instances of female to male harassment and same-sex harassment, these cases are uncommon.
2 Humans being what we are, it would be naive to assume that mere publication of an anti-harassment policy, and even training, will
stop those inclined to engage in harassing behavior from doing so.

WINTER 2018

Table of Contents for the Digital Edition of Bucks Writs - Winter 2018