Evolution of Sexual Harassment Law: How Do I Know a “Hostile Environment” When I See it ?

ABSTRACT

Title VII of the Civil Rights Act of 1964 (Laws of the United States, 1964) defines two types of sexual harassment – quid pro quo (requesting sexual favors for a business advantage) and a “hostile environment.” This paper examines the “hostile environment,” since it is a subjective standard as to the perception by the employee of objectionable behavior. There are two clear trends identified here - the evolution of legal decisions in the courts toward a more protective view of the employee and the evolution toward more tolerance by younger employees as to acceptable sexual behavior but less tolerance of abusive behavior.

Early court decisions in sexual harassment cases favored employers, requiring highly egregious behavior to justify a penalty. There was a pervasive attitude that sexual comments were excused as just flirting or normal social interaction and no actual harm was done unless there was physical contact. Even unwanted touching or staring was excused as harmless behavior. The public attitude toward sexual harassment has changed, as evidenced by the #MeToo movement and by punishment of high-profile men for sexual assaults and harassment. A younger judiciary and younger jurors probably also contribute to a less tolerant view of sexual harassment.

This paper is about the shifting standards of the law regarding sexual harassment, particularly as to low-wage earners such as typically found in the restaurant industry. It is not a fixed standard, so employers must govern themselves by being aware of trends and recent decisions.

Key words:

• sexual harassment
• hostile environment
• gender
• discrimination