Sexual harassment is far more prevalent in the workplace than most people realize.  A Cornell Law Review article entitled “Exacerbating the Exasperated: Title VII Liability of Employers for Sexual Harassment” eported that between 40% to 90% of women in the United States workforce have been the victims of some form of sexual harassment on the job. As even conservative Ninth Circuit Judge Kozinski recognized: “It is a sobering revelation that every woman—every woman—who has spent time in the workforce in the last two decades can tell at least one story about being the object of sexual harassment.” 

The majority of incidents, particularly egregious incidents, occur between a supervisor and his subordinate. One study of Fortune 500 companies found that almost two thirds of sexual harassment complaints were brought against a woman’s immediate supervisor or another person with greater power. Other studies have shown that half of all sexual harassers are the direct supervisors of their target, and that supervisors are more likely to engage in and get away with more severe forms of harassment.

The reason is plain: power is central to a supervisor’s harassment of a subordinate. As a result, a victim of sexual harassment is more likely to submit to and less likely to complain when the harasser is a supervisor. Not only do supervisors have, by definition, greater authority and power than do their subordinates, but they also control the norms of the workplace. In addition to determining assignments, evaluating performance and recommending promotions, they influence the “climate” of work: what behaviors are acceptable, what standards exist and how communication occurs. Individuals in higher status positions believe and are believed to have the right to make demands of those in lower status roles. Some managers view harassing behavior as an extension of that right. They expect lower status individuals to comply.

There are two kinds of sexual harassment: “quid pro quo” and “hostile environment.” Quid pro quo, a Latin term meaning “this for that,” occurs when your boss offers you benefits, or threatens to change your working conditions, based on your response to his demands for sexual favors. “I’ll give you a raise if you go out with me…” or “I’ll demote you if you don’t have sex with me” are examples of “quid pro quo” harassment. Hostile environment harassment occurs when physical, verbal, or visual sexual harassment is severe or pervasive enough to create a hostile or abusive work environment. This type of harassment does not require a loss or threat of loss of your job, or the promise of benefits. Comments about your body, sexual remarks, pornographic pictures displayed at the workplace, and touching and grabbing may all create a hostile work environment. In addition, the conduct must be unwelcome to you. If you like, want, or welcome the conduct, then you are not being sexually harassed. And if the conduct does not relate to your sex or have sexual references, it’s not sexual harassment.

A single incident of inappropriate behavior is unlikely to be considered sexual harassment unless it’s severe. For example, a single incident of rape or attempted rape would likely constitute sexual harassment (as well as violate criminal laws). However, a single unwanted request for a date or a single sexually suggestive comment, while offensive, may not be defined as sexual harassment. But a number of incidents that are relatively minor may amount to sexual harassment.

Because of the workplace hierarchy, the sexually harassed woman is unlikely to complain. Often, she is economically and emotionally dependent on her aggressor. Moreover, the abuse is humiliating, so the victim is motivated to keep it secret. Fearful of losing her job and economic security, she keeps quiet. She also may fear retraumatization by the legal system if she seeks recourse from higher authorities. Not surprisingly then, studies have shown repeatedly that very few individuals report their experiences or lodge an official complaint. Indeed, a review of ten studies revealed that only ten to fifteen percent of women either responded assertively to or reported the harassment. More than fifty percent of victims simply do and say nothing.

Until 1991, Title VII entitled sexual harassment victims to collect only back pay, lost wages and, if they had been forced to leave, to be reinstated in their jobs.  These women, if they won their cases, received a small monetary amount and an intolerable job back. Title VII of the Civil Rights Act of 1964, as amended in 1991, strengthened the remedies for sexual harassment.  It allows sexual harassment victims to recover compensatory damages beyond back pay, and may do so in a jury trial.  Moreover, these damages can encompass “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” Plaintiffs can also collect punitive damages, if they can demonstrate that an employer acted with malice or with reckless or callous indifference.

Against this backdrop, in 1998 the Supreme Court decided in Ellerth v. Burlington Industries, No. 97-569 and Faragher v. City of Boca Raton, No. 97-282 that companies may be held vicariously liable if supervisors sexually harass workers even if the employees do not report the harassment and suffered no tangible loss. By making employers liable for supervisors’ sexual harassment encourages an employer, as no other regime does, to exercise the greatest possible care in screening prospective managers and in training, supervising and monitoring supervisory personnel. It gives employers an incentive to put effective policies and training programs in place. In fact, 54% of Fortune 500 employers admitted in one survey that fears of legal exposure prompted them to establish company policies against harassment. And experience has shown these policies and programs work. Companies that have implemented sexual harassment training programs have reported reduced numbers of claims that develop into lawsuits. 

Society has a great stake in ensuring that the alarming rate of sexual harassment goes down. A Cleveland State Law Review Article entitled “The Present State of Sexual Harassment Law: Perpetuating Post Traumatic Stress Disorder in Sexually Harassed Women” reported that 90% to 95% of sexually harassed women suffer from some debilitating stress reaction, including anxiety, depression, headaches, sleep disorders, weight loss or gain, nausea, lowered self-esteem and sexual dysfunction. They experience job-related costs as well: from job loss, decreased morale, decreased job satisfaction to irreparable damage to interpersonal relationships at work. One study found that fully 50% of women who filed a complaint in California were fired; another 25% resigned due to the stresses of the complaint process or the harassment itself. A study of federal employees reported that those who have been harassed lose $4.4 million in wages and 973,000 hours in unpaid leave each year.

The costs are borne not only by the victims of harassment; they create financial havoc for employers as well. Sexual harassment costs a typical Fortune 500 company $6.7 million per year in absenteeism, low productivity and employee turnover. That does not include additional costs for litigation expenses, executive time and tarnished public image should a case wind up in court.

It is, therefore, imperative that employers do everything within their power to discourage, if not eliminate, all incidents of sexual harassment. Making them liable when supervisors abuse their power over subordinates is one small step in this direction. If they are made responsible, employers will have the incentive to create a workplace free of harassing behavior.