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Illegal Workplace Harassment: It's Not Just Sexual!

© Ronald J. Rakowski, SPHR, CELS

Enactment of federal and state anti-discrimination statutes, combined with a number of court rulings, have established the duty of employers to maintain a workplace free of harassment aimed at members of a "protected class." Federal anti-discrimination statutes currently protect job applicants and employees on the basis of age (over the age of 40), citizenship, color, disability (physical and mental), military status, national origin, pregnancy, race, religion, and sex.

Although federal anti-discrimination statutes don't protect individuals based on their sexual orientation, twelve states, plus the District of Columbia, do. States prohibiting discrimination based on sexual orientation include California, Connecticut, Minnesota, Nevada, New Hampshire, New Jersey, New York, Maryland, Massachusetts, Rhode Island, Wisconsin, and Vermont. Nine states, Arizona, Colorado, Delaware, Indiana, Illinois, Montana, Pennsylvania, and Washington prohibit discrimination on the basis of sexual orientation in public employment. And in 1993, President William J. Clinton issued Executive Order 13087 prohibiting discrimination on the basis of sexual orientation in federal employment.

Workplace harassment of a sexual nature was addressed by the Equal Employment Opportunity Commission (EEOC) as early as 1980 when the Commission published its GUIDELINES ON DISCRIMINATION BECAUSE OF SEX. Section 1604.11 of the Guidelines defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature 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; or

- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

In a landmark decision relating to workplace harassment, the U. S. Supreme Court ruled in 1986 (Meritor Savings Bank v. Vinson) that sexual harassment is a form of sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964.

After Michelle Vinson was terminated from her job at Meritor Savings Bank, she sued her former boss, a bank vice president, accusing him of four years of sexual harassment and arguing that his harassment created a "hostile" working environment in violation of Title VII. Ruling in her favor, the Supreme Court decided that the wording and intent of Title VII was not limited to "economic" or "tangible" discrimination and that the statute was enacted by Congress "to strike the entire spectrum of disparate treatment of men and women in employment..." In its decision, the Court determined that plaintiffs could establish a violation of the 1964 statute "by proving that discrimination based on sex has created a hostile or abusive work environment."