Understanding unwelcomeness in sexual harassment law: Its history and a proposal for reform

Notre Dame Law Review

Volumn 72, Issue 2, 1997, Pages 621-952

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EID: 26444504222     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (123)

1. 477 U.S. 57 (1986).
2. 42 U.S.C. § 2000e-2(a)(1) (1994).
3. In fact, the prohibition against sex discrimination was added as a last minute addition to the Act that became Title VII. Some commentators observe that the amendment was added in an attempt to defeat passage of the bill. See Ann C. Juliano, Note, Did She Ask For It?: The "Unwelcome" Requirement in Sexual Harassment Cases, 77 CORNELL L. REV. 1558, 1562 n.26 (1992).
4. Although men do experience sexual harassment, women are harassed more frequently. This Essay focuses mainly on problems women experience with sexual harassment, so I use "women" when referring to victims of alleged harassment. By using the term "woman" or "women," I do not mean to essentialize the experiences of a huge group of diverse individuals. Different women from differing backgrounds may experience sexual harassment in combination with other forms of oppression, racism, and heterosexism; which might make the problem even more complicated and difficult. See, e.g., Kimberlè Crenshaw, Race, Gender, and Sexual Harassment, 65 S. CAL. L. REV. 1467 (1992). In this Essay, I attempt to isolate the problem of sexual harassment for analysis, but it should be recognized that for many women sexual harassment is experienced inseparably from other forms of domination.
5. See Miller v. Bank of Am., 418 F. Supp. 233, 234 (N.D. Cal. 1976) (finding that Title VII is not intended to hold an employer liable for "what is essentially the isolated and unauthorized sex misconduct of one employee to another"), rev'd. on other grounds, 600 F.2d 211 (9th Cir. 1979); Corne v. Bausch & Lomb, Inc. 390 F. Supp. 161, 163 (D. Ariz. 1975) (finding that the conduct was "nothing more than a personal proclivity, peculiarity, or mannerism" of the supervisor), vacated on other grounds, 562 F.2d 55 (9th Cir. 1977).
6. Williams v. Saxbe, 413 F. Supp. 654, 657 (D.D.C. 1976) (finding that Title VII was violated when a supervisor dismissed an employee because she refused his requests for sexual relations), vacated on other grounds sub nom. Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978).
7. 29 C.F.R. § 1604.11 (1980). These regulations are merely advisory and do not bind the courts.
8. 29 C.F.R. § 1604.11 (a) (3) (1995).
9. The Supreme Court adopted the reasonable person standard in its first decision on sexual harassment, Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), and reiterated it in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Cf. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (adopting a "reasonable woman" standard to evaluate sexual harassment claims in order to alleviate the effects of the "male-biased" reasonable person standard that "tends to systematically ignore the experiences of women").
10. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
11. Id.
12. The Third and Ninth Circuits have chosen not to include unwelcomeness as an element of sexual harassment.
13. 477 U.S. 57 (1986).
14. Vinson v. Taylor, 753 F.2d 141, 146 n.36 (D.C. Cir. 1985).
15. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae, Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1985) (No. 84-1979), available in LEXIS, Genfed library, Briefs file.
16. Id.
17. Meritor Sav. Bank, 477 U.S. at 68 (citation omitted).
18. See Mary F. Radford, By Invitation Only: The Proof of Welcomeness in Sexual Harassment Cases, 72 N.C. L. REV. 499, 510 (1994). Professor Radford argues that although the Court did not directly address the allocation of the burden of proof, its language indicated that there is an "actual affirmative requirement that the plaintiff prove at trial" that her conduct put her harasser on notice that he was unwelcome. The combination of the Meritor decision and the EEOC's subsequent Policy Guidance memorandum led to the general adoption of this formulation of the plaintiff's burden.
19. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
20. Rabidue v. Osceola Ref. Co., 805 F.2d 611, 620-21 (6th Cir. 1986) (quoting Rabidue v. Osceola Ref. Co., 584 F. Supp. 419 (E.D. Mich. 1984)).
21. Meritor Sav. Bank, 477 U.S. at 69.
22. Ellen E. Schultz & Junda Woo, The Bedroom Ploy: Plaintiffs' Sex Lives Are Being Laid Bare in Harassment Cases, WALL ST. J., Sept. 19, 1994, at A1. This article cites the changes in remedies available after the passage of the Civil Rights Act of 1991 as adding a further motive for defense lawyers to delve into all areas of a plaintiff's personal life. With the availability of jury trials, compensatory and punitive damages and emotional distress awards, defendant employers today have much more of a financial stake in the outcome of harassment cases. In response, defense lawyers have increased the use of harassing pre-trial questioning designed to put pressure on plaintiffs, for example, asking "Did you ever watch X-rated films with your husband?" Defense lawyers claim this question relates not to promiscuity but to whether the plaintiff could have concocted her allegations of rape from images in movies she has seen. This kind of questioning makes it "clear that everyone will know everything" if the plaintiff continues to pursue her case.
23. The EEOC's first guidelines defining sexual harassment as a violation of Title VII appeared in 1980.
24. EEOC, Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. 915-035 (Oct. 25, 1988), which was replaced by a newer version on March 19, 1990 [hereinafter EEOC, Policy Guidance]. Cites are to the 1990 document. After Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), the EEOC issued an additional Enforcement Guidance document in which it explained that Harris was "fully consistent with" the earlier Policy Guidance memo, so that no new directions to investigators were necessary. EEOC, Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915-002 (Mar. 8, 1994) [hereinafter EEOC, Enforcement Guidance].
25. EEOC, Policy Guidance, supra note 24, at 7.
26. Id. (citing Barnes v. Costle, 561 F. 2d 983, 999 (D.C. Cir. 1977) (MacKinnon, J., concurring)).
27. Id. (citation omitted).
28. Id.
29. See infra notes 71-73 and accompanying text.
30. EEOC, Policy Guidance, supra note 24.
31. Id. at 8 n.9.
32. Id. at 9.
33. Id at 9 n.10 (citing Ukarish v. Magnesium Electron, 31 Fair Empl. Prac. Cas. (BNA) 1315 (D.N.J. 1983)).
34. Id. at 9.
35. Id. at 10.
36. Id.
37. Id.
38. EEOC, Facts About Sexual Harassment (Jan. 1994) (on file with author).
39. EEOC, Questions and Answers About Sexual Harassment (Dec. 1992) (on file with author).
40. Lipsett v. University of P.R., 864 F.2d 881 (1st Cir. 1988) (finding that medical student made out prima facie case that she suffered both hostile work environment and quid pro quo harassment). In its analysis of the welcomeness requirement, the court finds that the woman . . . must take responsibility for making those signals clear. In some instances, a woman may have the responsibility for telling the man directly that his comments or conduct is unwelcome. In other instances, however, a woman's consistent failure to respond to suggestive comments or gestures may be sufficient to communicate that the man's conduct is unwelcome. Id. at 898; see also Bouchet v. National Urban League, 33 Fair Empl. Prac. Cas. (BNA) 536, 540 (D.D.C. 1982), aff'd., 730 F.2d 799 (D.C. Cir. 1984) (holding that woman who alleged at least 27 sexual advances by her supervisor and a threat of being fired lost sexual harassment claim, court notes that "the plaintiff was not unaware that Johnson was attracted to her and recognized that this was a factor in Johnson's consideration of her employment. . . . At that time, plaintiff did nothing to discourage Johnson"); Kresko v. Rulli, 432 N.W.2d 764 (Minn. Ct. App. 1988) (concerning alleged sexual assault on student intern by supervisor). The court found she welcomed the behavior partly because [a] side from . . . [a fellow intern] and her daughter . . . respondent never notified anyone of the complained of activity. Kresko argues she was afraid to resist because she feared losing credits. However, . . . Kresko had no qualms about filing complaints concerning a dentist and judge when she felt she or her family were treated unfairly. . . . Kresko was actively involved in school politics and had no trouble asserting herself under those circumstances. The logical conclusion is that Kresko did not complain because either the advances were welcome, or at least she had ambivalent feelings. Id. at 768.
41. Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 459 (7th Cir. 1990) (finding no sexual harassment when supervisor "briefly fondled Plaintiff's breast . . . would enter her office, shut and lock the door, sit opposite her and just stare at her [and] . . . grabbed her waist").
42. See infra notes 71-73 and accompanying text.
43. See infra notes 67-69 and accompanying text.
44. Kresko, 432 N.W.2d at 768 (finding relevant to welcomeness of alleged sexual assault that the intern and supervisor "frequently lunched together and discussed personal matters").
45. Sardigal v. St. Louis Nat'l Stockyards, 42 Fair Empl. Prac. Cas. (BNA) 497 (S.D. Ill. 1986) (holding that waitress "welcomed, if not encouraged" co-worker's grabbing her and threatening to rape her, for which he was fired, because she visited him in the hospital, drove with him, and permitted him to visit her home).
46. Grubka v. Department of the Treasury, 858 F.2d 1570 (Fed. Cir. 1988) (finding that IRS decision to demote chief of quality review staff officer for leaning against and kissing trainee in an empty stairwell at a party was not supported by substantial evidence, especially considering that she kissed his cheek in a posed picture).
47. Gan v. Kepro Circuit Sys., 28 Fair Empl. Prac. Cas. (BNA) 639, 640 (E.D. Mo. 1982).
48. Id. at 639 (mentioning as finding of fact that plaintiff had been fired from her previous job "following her attempt to solicit a 'date' from a company foreman, a married man").
49. Evans v. Mail Handlers, 32 Fair Empl. Prac. Cas. (BNA) 634, 637 (D.D.C. 1983) (holding that secretary "substantially welcomed" "sexual advances of her supervisors" because she had had a consensual relationship for a time with one of them, and only began complaining, in the court's judgment, when the "relationship began to deteriorate").
50. Bigoni v. Pay 'N Pak Stores, 48 Fair Empl. Prac. Cas. (BNA) 732 (D. Or. 1988).
51. 989 F.2d 959 (8th Cir. 1993).
52. Id. at 963.
53. Ramsdell v. Western Mass. Bus Lines, Inc., 615 N.E.2d 192 (Mass. 1993) (holding that bus company clerk "'invited' or provoked" company president's pinning her up against a wall, asking for sexual favors, and making "derogatory references to women in general"; although "some" of this conduct was "uninvited," plaintiff couldn't find these actions "hostile, intimidating, or humiliating" because of her participation in sexually explicit conversation at the office); Weinsheimer v. Rockwell Int'l Corp., 754 F. Supp. 1559 (M.D. Fl. 1990) (holding that space shuttle technical inspector found welcome male colleague's asking her to "suck him," grabbing her crotch and breast, another's exposing his penis, and another's patting her on the rear because she "told sexual stories or made sexual gestures" in a work atmosphere filled with what court found to be "gender-neutral" "banter"), aff'd., 949 F.2d 1162 (11th Cir. 1991); Loftin-Boggs v. City of Meridian, 633 F. Supp. 1323 (S.D. Miss. 1986) (holding that staff chemist who participated in sexual office banter could not have found unwelcome the director of public works' "derogatory remarks about women, sexual proposition[s] . . . , and exclu[sion of her] from professional meetings," nor any harassment by co-workers relating to her consensual relationship with a superior, because these "were prompted by her own actions, including her tasteless joking"), aff'd., 824 F.2d 971 (5th Cir. 1987); Gan v. Kepro Circuit Sys., 28 Fair Empl. Prac. Cas. (BNA) 639, 640 (E.D. Mo. 1982) (Held, that plaintiff who cursed and discussed sex with co-workers "was not subjected to unprovoked propositions . . . . Any such propositions . . . were promoted by her own sexual aggressiveness and her own sexually-explicit conversations.").
54. Reed v. Shepard, 939 F.2d 484, 491 (7th Cir. 1991).
55. Id. at 492.
56. Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987) (finding that flight attendant did not welcome pilot's sexual insults, exposing himself to her or grabbing her despite the fact that she was a "foul-mouthed individual" who engaged in sexual pranks, because there was no evidence that the pilot knew of her conduct nor that he believed his conduct was welcomed by her).
57. Carr v. Allison Gas Turbine Div., 32 F.3d 1007 (7th Cir. 1994) (holding that sole woman in tinsmith shop's treatment by co-workers, which included insults, obscene signs, exposure, and the throwing of a burning cigarette at her, could not be considered welcome despite her use of sexual insults in return; court notes that their behavior was much more serious and threatening than hers).
58. Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994).
59. Id. at 1464 n.5 ("We . . . reject Showboat's assertion that Steiner [casino poker supervisor] somehow "welcomed" Trenkle's [her supervisor's] harassment because she herself talked like a 'drunken sailor,' since there is no suggestion in the record that Trenkle's remarks were in fact welcomed.").
60. Swentek, 830 F.2d at 557 (citing Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983)).
61. Morris v. American Nat'l Can Corp., 730 F. Supp. 1489, 1495 (E.D. Mo. 1989) (Held, that lone female in mold-making department did not incite her co-workers' insults and attacks; although she used profane language, the court found that this "could be part of plaintiff's efforts to fit in to the environment at hand. Such conduct, however, does not justify the harassing conduct plaintiff then endured"), aff'd in part and rev'd in part on other grounds, 952 F.2d 200 (8th Cir. 1991).
62. Susan Estrich, Sex At Work, 43 STAN. L. REV. 813, 826-34 (1991);
63. L. Camille Hébert, Sexual Harassment is Gender Harassment, 43 U. KAN. L. REV. 565, 587-88 (1995) (arguing that the law should not tolerate any sexual conduct in the workplace, and that eliminating the unwelcomeness requirement would "simply result in holding harassers responsible for their inappropriate sexual behavior . . . regardless of the actions of the target of the harassment").
64. B. Glenn George, The Back Door: Legitimizing Sexual Harassment Claims, 73 B.U. L. REV. 1, 28-30 (1993); Juliano, supra note 3;
65. Miranda Oshige, What's Sex Got to Do with It?, 47 STAN. L. REV. 565 (1995); Radford, supra note 18.
66. Juliano, supra note 3; Radford, supra note 18.
67. George, supra note 63, at 30.
68. Oshige, supra note 63, at 591.
69. BARBARA GUTEK, SEX AND THE WORKPLACE: THE IMPACT OF SEXUAL HARASSMENT ON WOMEN, MEN, AND ORGANIZATIONS (1985).
70. EEOC, Enforcement Guidance, supra note 24 ("An [EEOC] investigator . . . should consider the behavior from the standpoint of a reasonable person in CP's [Charging Party's] position. While most men who were promoted to senior copywriter probably would not take umbrage at the comments about 'good bodies,' 'nice legs,' a reasonable person in CP's position might consider her co-workers' and supervisors' behavior to be hostile and offensive.").
71. Frank E. Saal et al., Friendly or Sexy? It May Depend on Whom You Ask, 13 PSYCHOL. OF WOMEN Q. 263 (1989).
72. See Edward W. Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 STAN. L. REV. 5, 12-13 (1959), cited in Hébert, supra note 62 (arguing that the party who is trying to establish the more improbable set of facts, that is, that sexual conduct was welcome, ought to have the burden of proof).
73. U.S. MERIT SYSTEMS PROTECTION BOARD, SEXUAL HARASSMENT IN THE FEDERAL GOVERNMENT: AN UPDATE 2 (1987) (finding that 42% of all female employees and 14% of all males in the Executive Branch of the federal government have been sexually harassed, yet only 5% took any formal action).
74. See Paul Nicholas Monnin, Proving Welcomeness: The Admissibility of Evidence of Sexual History in Sexual Harassment Claims Under the 1994 Amendments to Federal Rule of Evidence 412, 48 VAND. L. REV. 1155 (1995) (arguing that since private suits are the primary method of enforcing Title VII, in order to serve the public policy interest in eliminating discrimination in the workplace such suits should not be discouraged).
75. U.S. MERIT SYSTEMS PROTECTION BOARD, supra note 71, at 3. Almost half of all sexual harassment victims in the study "tried to ignore the behavior or otherwise did nothing in response." Id.
76. See Schultz & Woo, supra note 22.
77. FED. R. EVID. 412 advisory committee's note.
78. Id.
79. The Supreme Court transmitted the Conference's proposal to Congress stripped of its application to civil actions. However, Congress restored the rule's reference to civil cases. Id.
80. Id.
81. Id.
82. See Schultz & Woo, supra note 22.
83. Id.
84. FED. R. CIV. P. 26(b)(1).
85. 895 F. Supp. 105 (E.D. Va. 1995).
86. 163 F.R.D. 617 (D. Utah 1995).
87. No. 95-C-23, 1995 WL 571324 (N.D. Ill. Sept. 25, 1995).
88. In Ramirez v. Nabil's, Inc. No. 94-2396-GTV, 1995 WL 609415 (D. Kan. Oct. 5, 1995), the court also allowed defendants to view plaintiffs' psychiatric and other medical records dating from their adolescence. The court found that the requests were reasonably calculated to lead to admissible evidence regarding claims of emotional distress and possibly "the sexual propensit[ies] of [plaintiff]." Id. at *2. The court did impose a protective order, mandating the parties not disclose the documents to anyone outside the litigation.
89. No. 91 CIV. 0918, 1995 WL 476712 (S.D.N.Y. Aug. 10, 1995).
90. Rule 412 protects not only the plaintiff but "any alleged victim."
91. 897 F. Supp. 483 (D. Or. 1995).
92. No. 93-C-4397, 1995 WL 117886 (N.D. Ill. Mar. 15, 1995).
93. Radford, supra note 18, at 545-46.
94. 29 C.F.R. § 1604.11(f) (1994).
95. EEOC, Policy Guidance, supra note 24, at 25.
96. Id. at 26.
97. Id. at 29.
98. Sexual harassment in schools is governed by Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681: Title IX prohibits quid pro quo harassment, but the law is still unsettled regarding hostile environment harassment. Nonetheless, many schools and universities have implemented policies that go beyond current legal requirements. See KATHARINE T. BARTLETT, GENDER AND LAW 507-11 (1993).
99. U.S. Army Corps of Engineers, Dealing with Sexual Harassment (1993) (on file with author).
100. IBM, Sexual Harassment Training (1995) (on file with author).
101. City of Cambridge, Sexual Harassment Policy and Complaint Procedures 3 (1993) (on file with author).
102. Harvard Law School, Sexual Harassment Guidelines 6 (1995) (on file with author).
103. LAWRENCE SOLOTOFF & HENRY S. KRAMER, Model Sexual Harassment Policy, in SEX DISCRIMINATION AND SEXUAL HARASSMENT IN THE WORK PLACE 16-32 (1995) ("Employees who believe they have been sexually harassed should tell the people harassing them that their behavior is offensive and must stop and immediately report their problem to their direct supervisors."); Columbia Journalism School, Policy Statement on Sexual Harassment (1995) ("any person who believes that he or she is being sexually harassed should seek a resolution of the problem through discussion with the person directly concerned") (on file with author); Department of the Navy, Sexual Harassment Policy 3 (1993) ("Individuals who believe they have been sexually harassed are encouraged to address their concerns or objections regarding the incident directly with the person demonstrating the harassing behavior.") (on file with author); Polaroid Corporation, Resolution Procedures for Harassment Complaint 6 (1993) ("Tell the individual that the behavior is unwelcome and you want it to stop.") (on file with author); Xerox, Sexual Harassment in the Work Place . . . The Xerox Policy (1993) ("If you are subjected to harassment[,] . . . [m]ake it clear to the harasser that the behavior is unwelcome and must cease.") (on file with author).
104. 9 to 5, Sexual Harassment: Saying "No" 5 (on file with author).
105. 9 to 5 Sexual Harassment and Sexual Discrimination Awareness Training and Legal Workshop (Oct. 24, 1995) (on file with author).
106. IBM, Sexual Harassment As A Business Issue (1994) (on file with author).
107. Polaroid, supra note 101, at 20.
108. U.S. Army Corps of Engineers, supra note 97.
109. The Governor's Commission on Women, Sexual Harassment in the Workplace - A Guide for Employers and Employees 11 (1994) (on file with author).
110. U.S. MERIT SYSTEMS PROTECTION BOARD, supra note 71, at 3.
111. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring). Justice Ginsburg recommends that "the adjudicator's inquiry should center, dominantly, on whether . . . the harassment so altered working conditions as to 'ma[k]e it more difficult to do the job.'" (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988)).
112. Actually, the Massachusetts General Law leaves out "unwelcome" in its definition of sexual harassment: The term "sexual harassment" shall mean sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . (b) such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment." MASS. GEN. LAWS ch. 151B, § 1(18). This would seem to fit the model above by mandating that harassment will only be judged by its effect upon the victim; however, in Ramsdell v. Western Mass. Bus Lines, Inc., 615 N.E.2d 192 (Mass. 1993), the Massachusetts Supreme Judicial Court nevertheless delved into the background of the plaintiff. Even though she was removed from some of her supervisory functions due to her "poor performance," the fact that her performance was hurt by harassment did not matter; the court felt that the plaintiff must have provoked the company president's harassment by virtue of her having engaged in sexually explicit conversation at work. Perhaps this kind of misunderstanding and misapplication of the law could be remedied by special educational programs for judges. Training programs could aim at breaking down outdated notions of what constitutes proper feminine behavior, and encourage judges to shift their foci to the detrimental effects harassing behavior has had on the employee.
113. IBM, supra note 98.
114. Regina Caines, et al., Guidelines for Handling Sexual Harassment in Cambridge Elementary Schools (on file with author).
115. New England Division, U.S. Army Corps of Engineers, Prevention of Sexual Harassment Training 7 (1995) (on file with author).
116. Prevention of Sexual Harassment Training 7 (1995) Id.
117. The Governor's Commission on Women, supra note 107, at 9.
118. U.S. Army, The Issue is Respect - Leader's Guide (on file with author).
119. IBM, supra note 98 (emphasis added).
120. Department of the Navy, Policy on Sexual Harassment, Enclosure (3) at 4 (1993).
121. Regina Caines, et al., supra note 112.
122. Cambridge School Department, Sexual Harassment Policy (1994) (on file with author).
123. See supra note 80 and accompanying text.