KAUP AND SHULTZ: EMPLOYMENT ATTORNEYS WORKING WITH THE VICTIMS OF SEXUAL HARASSMENT |
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| Kansas employment law attorney representing Kansas employees in employment disputes concerning race, age and gender discrimination, disability issues, family medical leave, civil rights, due process, sexual harassment, wage and hour disputes, wrongful discharge and termination in Kansas City, Johnson County, Overland Park, Topeka, Wichita, and across the state of Kansas. Kansas employees who believe their employment rights have been violated should contact a competent Kansas employment rights attorney who knows federal and Kansas law. |
| Sexual Harassment and Hostile Work Environment Unwelcomeness: a key to sexual harassment and hostile work environment cases |
| Michael M. Shultz An employment attorney for Kansas employees 913-385-9955 |
Sexual harassment is often thought of as unwelcome sexual
advances, when a co-worker or supervisor attempts to obtain a date or
sex from a female employee in exchange for some benefit or threat.
This is what use to be known as the quid pro quo form of sexual
harassment if the supervisor offered benefits for the sexual favors.
Hostile work environment comes more into play when men show
dislike for women and openly try to offend them with crude and offensive
behavior or practical jokes intended to demean women. It also occurs
simply when men continue to "come onto" women in the work place and
will not take "no" for an answer.
In both cases though, the idea of unwelcomeness comes into play. If a
co-worker flirts with a female employee on a daily basis, the female
might be offended and find the conduct unwelcome. In addition, if a
male co-worker shows his female boss sexually graphic pictures, the
boss might not be offended by the conduct--that is, find it unwelcome.
Thus, it is important for the victim sexual harassment to make it known
that the conduct is unwelcome. The grabbing of a woman's private parts
should be obviously unwelcome, but other times it is not clear if sexual
banter is unwelcome.
The EEOC has the following discussion of how it will investigate and
evaluate unwelcome behavior. The term CP that is used to refer to the
charging party, or the victim who files a charge with the EEOC.
From the EEOC:
Sexual harassment is "unwelcome . . . verbal or physical conduct of a
sexual nature . . . ." 29 C.F.R. § 1604.11(a). Because sexual attraction
may often play a role in the day-to-day social exchange between
employees, "the distinction between invited, uninvited-but-welcome,
offensive- but-tolerated, and flatly rejected" sexual advances may well be
difficult to discern. Barnes v. Costle, 561 F.2d 983, 999, 14 EPD ¶ 7755
(D.C. Cir. 1977) (MacKinnon J., concurring). But this distinction is
essential because sexual conduct becomes unlawful only when it is
unwelcome. The Eleventh Circuit provided a general definition of
"unwelcome conduct" in Henson v. City of Dundee, 682 F.2d at 903: the
challenged conduct must be unwelcome "in the sense that the employee
did not solicit or incite it, and in the sense that the employee regarded
the conduct as undesirable or offensive."
When confronted with conflicting evidence as to welcomeness, the
Commission looks "at the record as a whole and at the totality of
circumstances . . . ." 29 C.F.R. § 1604.11(b), evaluating each situation
on a case-by-case basis. When there is some indication of
welcomeness or when the credibility of the parties is at issue, the
charging party's claim will be considerably strengthened if she made a
contemporaneous complaint or protest.7 Particularly when the alleged
harasser may have some reason (e.g., prior consensual relationship) to
believe that the advances will be welcomed, it is important for the victim
to communicate that the conduct is unwelcome. Generally, victims are
well-advised to assert their right to a workplace free from sexual
harassment. This may stop the harassment before it becomes more
serious. A contemporaneous complaint or protest may also provide
persuasive evidence that the sexual harassment in fact occurred as
alleged (see infra Section B). Thus, in investigating sexual harassment
charges, it is important to develop detailed evidence of the
circumstances and nature of any such complaints or protests, whether to
the alleged harasser, higher management, co-workers or others.8
While a complaint or protest is helpful to charging party's case, it is not a
necessary element of the claim. Indeed, the Commission recognizes
that victims may fear repercussions from complaining about the
harassment and that such fear may explain a delay in opposing the
conduct. If the victim failed to complain or delayed in complaining, the
investigation must ascertain why. The relevance of whether the victim
has complained varies depending upon "the nature of the sexual
advances and the context in which the alleged incidents occurred." 29
C.F.R. § 1604.11(b).9
Example - Charging Party (CP) alleges that her supervisor subjected
her to unwelcome sexual advances that created a hostile work
environment. The investigation into her charge discloses that her
supervisor began making intermittent sexual advances to her in June,
1987, but she did not complain to management about the harassment.
After the harassment continued and worsened, she filed a charge with
EEOC in June, 1988. There is no evidence CP welcomed the
advances. CP states that she feared that complaining about the
harassment would cause her to lose her job. She also states that she
initially believed she could resolve the situation herself, but as the
harassment became more frequent and severe, she said she realized
that intervention by EEOC was necessary. The investigator determines
CP is credible and concludes that the delay in complaining does not
undercut CP's claim.
advances, when a co-worker or supervisor attempts to obtain a date or
sex from a female employee in exchange for some benefit or threat.
This is what use to be known as the quid pro quo form of sexual
harassment if the supervisor offered benefits for the sexual favors.
Hostile work environment comes more into play when men show
dislike for women and openly try to offend them with crude and offensive
behavior or practical jokes intended to demean women. It also occurs
simply when men continue to "come onto" women in the work place and
will not take "no" for an answer.
In both cases though, the idea of unwelcomeness comes into play. If a
co-worker flirts with a female employee on a daily basis, the female
might be offended and find the conduct unwelcome. In addition, if a
male co-worker shows his female boss sexually graphic pictures, the
boss might not be offended by the conduct--that is, find it unwelcome.
Thus, it is important for the victim sexual harassment to make it known
that the conduct is unwelcome. The grabbing of a woman's private parts
should be obviously unwelcome, but other times it is not clear if sexual
banter is unwelcome.
The EEOC has the following discussion of how it will investigate and
evaluate unwelcome behavior. The term CP that is used to refer to the
charging party, or the victim who files a charge with the EEOC.
From the EEOC:
Sexual harassment is "unwelcome . . . verbal or physical conduct of a
sexual nature . . . ." 29 C.F.R. § 1604.11(a). Because sexual attraction
may often play a role in the day-to-day social exchange between
employees, "the distinction between invited, uninvited-but-welcome,
offensive- but-tolerated, and flatly rejected" sexual advances may well be
difficult to discern. Barnes v. Costle, 561 F.2d 983, 999, 14 EPD ¶ 7755
(D.C. Cir. 1977) (MacKinnon J., concurring). But this distinction is
essential because sexual conduct becomes unlawful only when it is
unwelcome. The Eleventh Circuit provided a general definition of
"unwelcome conduct" in Henson v. City of Dundee, 682 F.2d at 903: the
challenged conduct must be unwelcome "in the sense that the employee
did not solicit or incite it, and in the sense that the employee regarded
the conduct as undesirable or offensive."
When confronted with conflicting evidence as to welcomeness, the
Commission looks "at the record as a whole and at the totality of
circumstances . . . ." 29 C.F.R. § 1604.11(b), evaluating each situation
on a case-by-case basis. When there is some indication of
welcomeness or when the credibility of the parties is at issue, the
charging party's claim will be considerably strengthened if she made a
contemporaneous complaint or protest.7 Particularly when the alleged
harasser may have some reason (e.g., prior consensual relationship) to
believe that the advances will be welcomed, it is important for the victim
to communicate that the conduct is unwelcome. Generally, victims are
well-advised to assert their right to a workplace free from sexual
harassment. This may stop the harassment before it becomes more
serious. A contemporaneous complaint or protest may also provide
persuasive evidence that the sexual harassment in fact occurred as
alleged (see infra Section B). Thus, in investigating sexual harassment
charges, it is important to develop detailed evidence of the
circumstances and nature of any such complaints or protests, whether to
the alleged harasser, higher management, co-workers or others.8
While a complaint or protest is helpful to charging party's case, it is not a
necessary element of the claim. Indeed, the Commission recognizes
that victims may fear repercussions from complaining about the
harassment and that such fear may explain a delay in opposing the
conduct. If the victim failed to complain or delayed in complaining, the
investigation must ascertain why. The relevance of whether the victim
has complained varies depending upon "the nature of the sexual
advances and the context in which the alleged incidents occurred." 29
C.F.R. § 1604.11(b).9
Example - Charging Party (CP) alleges that her supervisor subjected
her to unwelcome sexual advances that created a hostile work
environment. The investigation into her charge discloses that her
supervisor began making intermittent sexual advances to her in June,
1987, but she did not complain to management about the harassment.
After the harassment continued and worsened, she filed a charge with
EEOC in June, 1988. There is no evidence CP welcomed the
advances. CP states that she feared that complaining about the
harassment would cause her to lose her job. She also states that she
initially believed she could resolve the situation herself, but as the
harassment became more frequent and severe, she said she realized
that intervention by EEOC was necessary. The investigator determines
CP is credible and concludes that the delay in complaining does not
undercut CP's claim.
