This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. CHAPTER 6 The Legal Imperative to Prevent Sexual Harassment: A Review of Case Law Courts applied ... [the principle that an emploeey's protections under Title Vll extend beyond the economic aspects of employment] to harassment based on race, ...religion, ...and national origin... Nothing in Title Vll suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. -1 Overview Sexual harassment case law has developed and broadened significantly since 1981, when our first report characterized it as "limited but growing." It has now been well established that sexual harassment is sexual discrimination. The Equal Employment opportunity Commission regulations (29 C.F.R. section 1604.11) on sexual harassment have been upheld by the Supreme Court as a lawful regulatory interpretation of Title Vll of the Civil Rights Act of 1964, the title that bars discrimination in employment on the basis of sex. Similarly, it is well established that sexual harassment is a prohibited personnel practice because Congress declared in the Civil Service Reform Act that violations of Title Vll were also prohibited personnel practices. -3 The following discussion of important Merit Systems Protection Board and Federal court decisions relating to sexual harassment is not intended to be a complete listing of all cases. It does, however, identify decisions on major issues relating to sexual harassment that were rendered from January 1981 through January 1988. In the following cases the Board and a Federal court recognized the right of women employees and women applicants to be free from sexual harassment in Federal employment: Downes v. F.A.A., 775 F.2d 288 (Fed. Cir. 1985); Henson v. City of Dundee, 682 F.2d 897 (llth Cir. 1982); Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); and Jones v. Department of Justice, 24 M.S.P.R. 230 (1984). A number of Board and Federal court decisions have recognized the right of the employing agency to discipline employees who engage in sexually harassing behavior. These cases include: Carosella v. United States Postal Service, 816 F.2d 638 (Fed. Cir. l987); Hillen v. Army, 35 M.S.P.R. 453 (1987); and Vakili v. Department of Agriculture, 35 M.S.P.R. 534 (1987). In addition, Social Security Administration v. Carter, 35 M.S.P.R. 485 (1987), is a case in which the Board sustained an agency's right to discipline an administrative law judge for acts of sexual harassment. In Special Counsel v. Russell, 32 M.S.P.R. 115 (1987), the Board sustained the Special Counsel's right to independently seek to discipline Government employees for such unlawful behavior. Review of the Meritor Decision This 1986; U.S. Supreme Court decision made both "history and headlines," in the words of the Washington Post. Ruling in its first sexual harassment case (June 19, 1986)--the now-famous Meritor Savings Bank, FSB v. Vinson, 106 S. Ct. 2399 - the Court issued a unanimous opinion saying that sexual harassment indeed violates Title Vll if it creates a hostile or offensive environment for the victim, regardless of whether it threatens the individual's job. In this landmark Supreme Court case on sexual harassment, the Court: * Held that the Civil Rights Act of 1964 is not limited to economic or tangible discrimination and found that the EEOC guidelines comprise proper guidance for courts and litigants; * Called attention to the EEOC guidelines that include "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" as being conduct that can violate Title Vll, whether the injury is economic or noneconomic; * Held that environmental sexual harassment can violate Title VII if it i severe or pervasive enough to actually affect the alleged victim's work conditions and create a hostile environment. However, remarks that simply offend someone's feelings but are not pervasive harassment creating a hostile enviroment would not violate Title VII; * Stressed that prohibited sexual advances are those that are unwelcome. Even if the harassing conduct results in the alleged victim's voluntary (not forced against the will) participation in sexual intimacy, the harassment can violate Title VII; the key question is whether the sexual advances were unwelcome; and * Ruled that any evidence of an alleged victim's sexually provocative speech and dress may be admitted at a trial in defense against a sexual harassment charge. While Meritor focuses on whether a supervisor created a hostile environment, the EEOC guidelines make it clear that sexual harassment by coworkers can also violate Title VII. Liability Findings and Implications in Meritor While the Supreme Court in Meritor did not issue a definitive rule on employer liability, the ruling did have important implications for sexual harassment initiated by supervisors. The Court ruled that: * Employers can, in certain circumstances, be held responsible for sexual harassment by their supervisory employees; * Employers are not necessarily insulated from that liability because they were not aware of sexual harassment by their supervisory employees; and * Existence of a carefully tailored grievance procedure and non-discrimination policy which specifically addresses sexual harassment, coupled with the employee's failure to use the procedure, can insulate the employer from liability. In making these rulings, the Supreme Court endorsed the EEOC regulations that provide that Federal agencies can be held liable for acts of sexual harassment by their supervisory employees even when certain policies and procedures to prevent it are in existence. For guidance on employer liability for acts of sexual harassment by coworkers and nonemployees, lower courts continue to look to EEOC's guidelines. These apply general Title Vll principles in outlining an employer responsibility for the conduct of supervisors, agents, coworkers, and nonemployees. NOTES 1. Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399, 2405 (1986). 2. This decision - Meritor Savings Bank, FSB v. Vinson 106 S.Ct. 2399, 2405 (1986) - is discussed later in this chapter. 3. 5 U.S.C. section 2302(b)(1)(A).