Sexual Harassment: A Practical Guide to the Law, Your Rights, and Your Options for Taking Action

Sexual Harassment: A Practical Guide to the Law, Your Rights, and Your Options for Taking Action

by Jane LaLonde, Tracy O'Shea

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Product Details

ISBN-13: 9781250097552
Publisher: St. Martin's Press
Publication date: 09/08/2015
Sold by: Macmillan
Format: NOOK Book
Pages: 256
File size: 2 MB

About the Author

Tracy O'Shea and Jane LaLonde (a pseudonym) are professionals in the publishing and banking industries, respectively. Each spent many months researching this topic for herself before coming together to write this book. Both live in the New York area.
Tracy O'Shea and Jane LaLonde (a pseudonym) are professionals in the publishing and banking industries, respectively. Each spent many months researching this topic for herself before coming together to write Sexual Harassment: A Practical Guide to the Law, Your Rights, and Your Options for Taking Action. Both live in the New York area.

Read an Excerpt

Sexual Harassment

A Practical Guide to the Law, You Rights, and Your Options For Taking Action


By Tracy O'Shea, Jane LaLonde

St. Martin's Press

Copyright © 1998 Tracy O'Shea and Jane LaLonde
All rights reserved.
ISBN: 978-1-250-09755-2



CHAPTER 1

WHAT IS SEXUAL HARASSMENT?


As long as you keep a person down, some part of you has to be down there to hold him down, so it means you cannot soar as you otherwise might.


Marian Anderson, Interview, CBS-TV, December 30, 1957


I struggled over the definition of sexual harassment. I knew the legal definition, but that didn't exactly translate into real life. Obviously I'm very aware of sexual harassment and am constantly searching for hidden agendas or undertones in what people say. But why is it that a single comment made by one person takes on a completely different meaning when said by someone else? How do you define perceptions? Everyone has different mind-sets and different histories that shade how they look at things. I believe it boils down to motives, what the harasser hopes to gain. — Tracy

This chapter is probably one of the most important in the book. I know when I was finally able to name what was happening to me, by finding a definition of hostile work environment in a book, subsequent to the start of my internal investigation. It was so moving that I literally started to cry when I read it. Finally, I was able to name what was happening to me. Even though I still did not know what my options were or how to handle things, at least I now knew that my reaction to my situation was normal and I was not just being hysterical. I knew that I was not alone in my feelings and found tremendous comfort in knowing that my response to the situation was not unique. I found solace in just knowing that others before me had experienced similar situations and had a similar reaction. When I read that my symptoms of depression coupled with a general disinterest in things that once made me happy were the common reaction to sexual harassment on the job, all of a sudden I experienced the clarity I needed. Unfortunately, from both a psychological and strategic perspective, I could have benefited from finding this definition much earlier; nonetheless, although I still didn't know what to do, just knowing that my reactions were normal gave me the added impetus I needed to stand up for myself, realizing full well that I might have to fight my company in my claim of sexual harassment. I found solace in learning that my reaction was much like those of other people who had experienced the same thing on the job. — Jane


In one of his books, Robert Fulghum wrote an essay discussing how a person's identity and self-worth are tied into what can be written on a two- by-three-inch business card. He goes on to discuss how often the first question people ask when they first meet is "What do you do?" It is the answer to this question that immediately forms the basis of a person's initial impression of you. When that identity is stripped away, people's impression of you changes. In fact, your own impression of yourself changes. During my experience with sexual harassment, I often thought of this essay and the simple truth behind it. That is only one of the devastating effects of sexual harassment — it takes away your very identity.

Like a fog that rolls in slowly and unnoticed until you find yourself lost in the midst of it, sexual harassment is insidious and pervasive. Besides the obvious effects — fear, discomfort in your own working environment, loss of pride in your work, to name a few — sexual harassment affects the very core of who you are as a person. Being victimized by it forces you to question yourself and to lose faith in your own judgment. This self-doubt does not confine itself to your work life; it invades your personal life as well, seeping into your relationships with friends and family. Every single comment and interaction with the harasser chips away at you slowly until suddenly one day you discover that you feel completely shattered.

Because every incident of sexual harassment is different, and because it challenges the fundamental dynamics of the male/female relationship, it is very difficult to create a precise, all-encompassing definition of sexual harassment. The legal definition does not touch upon what sexual harassment really means to a victim, and the impact it has on all aspects of her life — not just the professional. In an effort to clearly show how wide- ranging the effects of harassment really are, we have expanded upon the legal definition and created what we call the "real world" definition.


Sexual Harassment: The Legal Definition

Sexual harassment is considered a type of sex discrimination and as such is covered by Title VII of the Civil Rights Act of 1964.

The legal precedent was established in 1986 in the case Meritor Savings Bank v. Vinson (477 U.S.57), in which the U.S. Supreme Court ruled that harassment is sex discrimination and is therefore illegal under Title VII of the Civil Rights Act.

In regard to sexual harassment, Title VII says the following:

Sexual harassment is legally defined as any unwelcome sexual advances or requests for sexual favors. It also includes any verbal or physical conduct of a sexual nature when the following criteria are met:

• Submission is made explicitly or implicitly a term or condition of an individual's employment;

• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual;

• 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.

Sexual harassment may include physical conduct, verbal conduct, or nonverbal conduct such as sexual gestures or pornographic pictures.


Under the law, there are two basic types of sexual harassment: quid pro quo and hostile environment.


Quid Pro Quo

Latin for "something for something," quid pro quo harassment is the most blatant and is what most people think of when they hear the words sexual harassment. Quid pro quo harassment is a request for sexual favors in exchange for a promotion, a raise, or even the right to keep a current job. More succinctly, the Equal Employment Opportunity Commission (EEOC) defines it as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute "quid pro quo" sexual harassment when:

Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.


Because quid pro quo harassment is usually so blatant, one incident is usually enough to support a legal claim. The classic example of quid pro quo sexual harassment is the middle-aged manager requesting sex from his pretty young secretary as a condition to retain employment.


Hostile Work Environment

Hostile-work-environment harassment is not as clear-cut as quid pro quo. With hostile-environment harassment, the victim is subjected to unwelcome sexual advances, requests for sexual favors, and other verbal or physical behavior that interferes with her work performance or creates an intimidating or offensive working environment. The main difference between hostile environment and quid pro quo is that any requests for sexual favors are not made in exchange for a raise, promotion, or as a condition for continued employment.

In an effort to clarify the definition of hostile environment, the EEOC created the following guidelines:

In determining whether or not an environment is hostile, it must be determined whether or not the conduct unreasonably interfered with an individual's work performance or created an intimidating hostile or offensive working environment.

The EEOC suggests that courts look at the following criteria:

• whether the conduct was verbal, physical, or both

• how frequently it was repeated

• whether the conduct was hostile or patently offensive

• whether the alleged harasser was a co-worker or a supervisor

• whether others joined in perpetrating the harassment

• whether the harassment was directed at more than one individual

• were remarks hostile and derogatory?

• did the harasser single out the charging party?

• did the charging party participate in the exchange?

• what was the relationship between the charging party and alleged harasser?


Hostile-environment claims can include many types of behavior: sexually degrading or sexually explicit comments, crude jokes or stories, leering at someone's body, displaying pornographic drawings or photographs, circulating dirty cartoons, rubbing up against someone, touching a person in an inappropriate manner, sexually based teasing, sexual favoritism, forcing an employee to put up with offensive behavior, and forcing an employee into a situation that she feels uncomfortable in.

This type of sexual harassment is much more difficult to define than quid pro quo because of the subjectivity involved; what one person may find offensive may not be offensive to someone else. Therefore it is critical that the victim tell the harasser as early as possible that the behavior is unwelcome. Silence on the part of the offended party may be construed as acceptance. Unless the actions of the harasser are particularly egregious, it takes more than one incident to constitute hostile-environment harassment.

The second sexual harassment case heard by the Supreme Court was in 1993. In Harris v. Forklift Systems, Inc., the Supreme Court began to define what created a hostile workplace. In Harris the Court held that a victim of sexual harassment does not have to show that she suffered "severe psychological injury" in order to state a claim. (Until this ruling, some federal courts had been demanding the plaintiff offer proof of psychological trauma in order to validate her claim.) The Supreme Court established a two-pronged test:

1. The conduct complained of must "be severe or pervasive enough to create an objectively hostile or abusive environment that a reasonable person would find hostile or abusive."

2. The victim must "subjectively perceive the environment to be abusive."

If both of these criteria are met, there is sufficient proof of a hostile work environment.

In Ellison v. Brady, 924 F2d (9th Cir. 1991), the "reasonable woman" standard was developed. In this case it was determined that sexually harassing behavior must be looked at from the perspective of the victim and should be based upon the unique experience of women. The ruling states in part that "the reasonable person standard still must consider the victim's perspective and not the stereotyped notions of acceptable behavior." Since this ruling, the EEOC and the courts will look at whether the victim was subjected to behavior and conditions that any reasonable woman would consider sufficiently severe or pervasive enough to alter the conditions of employment and create an abusive working environment.


Blurred Boundaries

In an effort to develop a better understanding of sexual harassment, F. Till has expanded upon quid pro quo and hostile-environment harassment to develop a model that breaks sexual harassment into five different types. This model is helpful because it is very easy for the victim to become confused about what is and what isn't sexual harassment. Many comments that are borderline may or may not be considered harassment based upon the context of the behavior and the dynamics of the victim/harasser relationship. These clearly defined categories help to organize the victim's thoughts and solidify her perspective as to what is happening to her.

While these basic models clarify the range of sexual harassment, it is very important to note that they are not mutually exclusive, nor are they all-inclusive. It is not unusual for one case of sexual harassment to include more than one example from the model. And, of course, there are so many types of harassment that it is virtually impossible to develop a model for each. Of these five types, gender harassment is the most common.


Five Types of Sexual Harassment

Type 1: Gender Harassment Generalized sexist remarks and behavior

Type 2: Seductive Behavior Inappropriate and offensive (but essentially sanction-free) behavior with no penalty attached to noncompliance

Type 3: Sexual Bribery Solicitation of sexual activity or other sex-linked behavior by promise of rewards

Type 4: Sexual Coercion Coercion of sexual activity by threat of punishment

Type 5: Sexual Imposition or Assault Gross sexual imposition such as touching, fondling, grabbing or assault


Sexual harassment can sometimes be ambiguous, and it is not uncommon for a victim to wonder if she is truly being harassed. There is no one-size-fits-all definition of sexual harassment that could clearly define every scenario. The difficulty with developing a concrete definition is that person A may find person B's actions objectionable, but person C does not. Here are some broad guidelines as to what is and what is not harassment:


What is Sexual Harassment

"You look like you need to get laid."

"That blouse really shows off your curves."

Repeatedly asking a co-worker out once she's made it clear that she's not interested.

Your boss telling you your bonus is dependent on accompanying him to an out-of-town conference and that you do not need your own hotel room.

If the person repeatedly finds opportunities to brush up against you; if it is no longer accidental but deliberate.

Sexually explicit jokes, e-mails, or faxes sent to your attention.


What is NOT considered Sexual Harassment

"You do not look very happy. Is everything okay?"

"You look nice in yellow."

Asking a co-worker out on a date.

Your boss requesting your presence at a company dinner.

Co-worker accidentally brushes up against you.

An isolated incident of an innocent "blue" joke making its way around the office, not directed at anyone specifically.


The Real-World Definition of Sexual Harassment

OK, so you know the legal definition of sexual harassment. Unlike most other civil wrongs, the situation isn't over when the case is settled. The ramifications can remain with you for the rest of your life. Sexual harassment can have many far-reaching effects, such as a loss of self-esteem and paranoia. When we were being victimized, we both suffered devastating bouts of self-examination. We'd constantly ask questions such as: Am I crazy? Did I imagine this? Am I overreacting? Am I doing something wrong? Could I be doing something differently? If this is sexual harassment and other people witness it, why aren't they doing anything about it?

Having experienced sexual harassment firsthand, we know that it means different things to different people. While the law does a fair job of setting the parameters as to what will and will not be tolerated, we found it helpful and reassuring to put down our thoughts as to what sexual harassment means to us.


Defining Sexual Harassment from a Victim's Perspective

To the victim, sexual harassment is a traumatic experience that undermines self-esteem and builds paranoia. Other words associated with this definition are humiliation and degradation. After experiencing sexual harassment, we developed our own definition:

To the victim, sexual harassment is very real and has many varied meanings:

• worrying about what other co-workers think about me and this situation

• worrying that I will be blamed

• being afraid people will think less of me for letting this happen

• second-guessing myself — what did I wear, what did I say, how did I act?

• questioning my own sensitivity to this situation

• questioning my own emotional stability

• staying awake at night wondering how to deal with the situation

• no longer deriving a sense of pleasure from my work

• having to let go of something I've worked so hard to achieve

• a terrible loss of self-esteem due to my inability to control things at work

• the real possibility of destroying either my career or my sense of self-worth

• having to confront a corporation I always thought was there to protect me

• the possibility of litigating with a corporation with resources beyond mine

• reliving every moment of interaction and wondering how I could have avoided it

• physical problems, such as anxiety attacks, insomnia, weight loss or gain, depression, dizziness, cold sweats, and stomach pain

• watching over your shoulder at all times

• being afraid and not really knowing why

• a pervasive fear of seeing this person

• being embarrassed and humiliated by the situation

• being lonely because no one really seems to understand

• not being free to do the work I was hired to do without a confrontation

• having someone making comments about my physical attributes

• being thrown off balance by having my attention taken off of a business situation and focusing it on my appearance • feeling weak and alone

• finding out it that the situation doesn't disappear if you work harder, smarter, or faster


(Continues...)

Excerpted from Sexual Harassment by Tracy O'Shea, Jane LaLonde. Copyright © 1998 Tracy O'Shea and Jane LaLonde. Excerpted by permission of St. Martin's Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Introduction: Our Stories
1. What Is Sexual Harassment?
2. Who Is Affected by Sexual Harassment?
3. Recourse: You've Been Harassed--Now What?
4. Intervention: Where to Find Help If the Harassment Doesn't End
5. The Legal Route: Is It Right for You?
6. Navigating the Legal Process
7. Retaliation
8. Picking Up the Pieces of Your Career
9. The Healing Process
Resource Guide
Appendix: Sample Documents

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