Michael Shultz is a Kansas sex discrimination and sexual harassment attorney working with clients throughout Kansas, including Johnson County and Sedgwick, Douglas and Shawnee Counties, including the cities of Kansas City, Kansas, Overland Park, Olathe, Wichita, Topeka, Lawrence, Salina, Manhattan and Emporia. If you believe that you have been the victim of sex discrimination, whether the basic type of sex discrimination discussed on this page, or sexual harassment, you should consult with an attorney. A Kansas lawyer who knows Kansas employment laws can help you determine if you have been the victim of sex discrimination and if you want to pursue your employment rights. |
| The Law of Sexual Harassment and Sexual Discrimination |
| Kaup & Shultz, Attorneys at Law, LC |
| Kaup & Shultz, Attorneys at Law, LC Overland Park, KS 913-385-9955 and 901 Kentucky Suite 305 Lawrence, KS 785-838-4300 email us |
| The information in these pages is intended for Kansas employees who are interested in sexual harassment law and hostile work environment. The information is intended for educational purposes only and is not intended to establish an attorney client relationship with any person. If you have an actual legal problem concerning sexual harassment, you should contact a competent Kansas employee rights attorney. |
Sexual Harassment: Defined
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate
in the terms and conditions of employment based upon gender. In a
very important United States Supreme Court case known as Meritor
Savings Bank v. Vinson (1986), the Court determined that a hostile
work environment could discriminate against women in the terms and
conditions of employment.
Even though Meritor made it clear that sexual harassment was illegal, a
study done several years later found that 31% of female works claimed
to have been harassed at work and 100% of the time the harasser was
a male. We now know, however, that women can harass men and even
other women. And, in another important Supreme Court case, it was
determined that men could harass other men, though these cases are
often not related to some type of sexual activity.
The Court rejected the employer's contention that Title VII prohibits
only discrimination that causes "economic" or "tangible" injury. The
Court held that Title VII affords women the right to work in an
environment free from discriminatory intimidation, ridicule, and
insult. Relying on the EEOC's Guidelines definition of harassment, the
court held that a plaintiff may establish a violation of Title VII "by
proving that discrimination based on sex has created a hostile or
abusive work environment." Id.
As one court has stated "Sexual harassment which creates a hostile or
offensive environment for members of one sex is every bit the arbitrary
barrier to sexual equality at the workplace that racial harassment is to
racial equality. Surely, a requirement that a man or woman run a
gauntlet of sexual abuse in return for the privilege of being allowed to
work and made a living can be as demeaning and disconcerting as the
harshest of racial epithets."
The EEOC Definition of Sexual Harassment
The EEOC has established a definition of sexual harassment that has
become the model for the courts and for most sexual harassment
policies adopted across the country.
"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
unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment."
The EEOC has established some additional guidelines to assist us in
understanding the nature of sexual harassment. The guidelines
include the following:
The harasser may be a man or a woman and the victim also can be
either.
The harassment can be created by the supervisor of the victim or a
co-worker or even a non-employee, such as an agent of the employer or
someone who does business with the employer (for example, a
customer in a restaurant).
The victim of sexual harassment can be anyone who witnesses the
offensive activity so long as it has the effect of subjecting them to
humiliation, embarrassment or ridicule. However, it is far more
common that the victim of the harassment if the person against whom
it is directed.
Unlawful sexual harassment does not require any economic injury to
be unlawful. It can simply cause emotional distress for the victim.
However, this emotional distress does not mean a psychological injury
in the medical sense.
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate
in the terms and conditions of employment based upon gender. In a
very important United States Supreme Court case known as Meritor
Savings Bank v. Vinson (1986), the Court determined that a hostile
work environment could discriminate against women in the terms and
conditions of employment.
Even though Meritor made it clear that sexual harassment was illegal, a
study done several years later found that 31% of female works claimed
to have been harassed at work and 100% of the time the harasser was
a male. We now know, however, that women can harass men and even
other women. And, in another important Supreme Court case, it was
determined that men could harass other men, though these cases are
often not related to some type of sexual activity.
The Court rejected the employer's contention that Title VII prohibits
only discrimination that causes "economic" or "tangible" injury. The
Court held that Title VII affords women the right to work in an
environment free from discriminatory intimidation, ridicule, and
insult. Relying on the EEOC's Guidelines definition of harassment, the
court held that a plaintiff may establish a violation of Title VII "by
proving that discrimination based on sex has created a hostile or
abusive work environment." Id.
As one court has stated "Sexual harassment which creates a hostile or
offensive environment for members of one sex is every bit the arbitrary
barrier to sexual equality at the workplace that racial harassment is to
racial equality. Surely, a requirement that a man or woman run a
gauntlet of sexual abuse in return for the privilege of being allowed to
work and made a living can be as demeaning and disconcerting as the
harshest of racial epithets."
The EEOC Definition of Sexual Harassment
The EEOC has established a definition of sexual harassment that has
become the model for the courts and for most sexual harassment
policies adopted across the country.
"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
unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment."
The EEOC has established some additional guidelines to assist us in
understanding the nature of sexual harassment. The guidelines
include the following:
The harasser may be a man or a woman and the victim also can be
either.
The harassment can be created by the supervisor of the victim or a
co-worker or even a non-employee, such as an agent of the employer or
someone who does business with the employer (for example, a
customer in a restaurant).
The victim of sexual harassment can be anyone who witnesses the
offensive activity so long as it has the effect of subjecting them to
humiliation, embarrassment or ridicule. However, it is far more
common that the victim of the harassment if the person against whom
it is directed.
Unlawful sexual harassment does not require any economic injury to
be unlawful. It can simply cause emotional distress for the victim.
However, this emotional distress does not mean a psychological injury
in the medical sense.
What Other Factors Make Harassment Unlawful?
In addition to the definition from the EEOC that is given above, there are
several other factors that come into play when determining if there has
been unlawful sexual harassment. These are:
In addition to the definition from the EEOC that is given above, there are
several other factors that come into play when determining if there has
been unlawful sexual harassment. These are:
- The conduct must be severe or pervasive. The occasional comment that is negative
toward a woman probably will not result in sexual harassment. Many cases turn on
whether the judge or a jury determines that the offensive conduct was severe or
pervasive enough to count as sexual harassment. - The conduct must be objectively and subjectively offensive. This means it must be
offensive, in a sexual or sex-based way, to the average person and to the victim
herself. When a woman engages in her own sexual banter, it will be harder to prove
that she was offended by something a man did. - The conduct must be welcome. This is similar to the previous factor; however, the
courts have often ruled that the victim of sexual harassment must inform the
harasser that his conduct is not welcome. In some cases this is simply obvious. For
example, if a man exposes himself to a woman (and yes, this does happen in the
workplace).
In order to better
understand the
types of sexual
harassment, please
click here on Sexual
Harassment 2 or on
the Navigation Bar.
understand the
types of sexual
harassment, please
click here on Sexual
Harassment 2 or on
the Navigation Bar.
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