Haynes and Boone's Newsroom

Sexual Harassment: From Monica to the Courtroom
10/12/2000
Jonathan C. Wilson

Introduction

The 1990s will go down as the decade of sexual harassment claims. Anita Hill testified before the U.S. Senate; Paula Jones filed a lawsuit against a sitting President; Sergeant Gene McKinney, the Army's top enlisted soldier, resigned his rank after successfully defending himself before an Army tribunal; and last, but certainly not least, the Monica Lewinski matter has glued national attention to the complex issues involving workplace sexual conduct. Moreover, during its 1997-1998 term, the U.S. Supreme Court decided four sexual harassment cases. These headline-making stories and decisions have increased awareness of sexual harassment issues, and this heightened awareness has undoubtedly fueled the flurry of sexual harassment lawsuits. Now, more than ever, employers must adopt, implement and enforce appropriate measures to prohibit workplace sexual harassment.

Unfortunately, nearly 25 years after Congress enacted Title VII, courts, attorneys, and human resource professionals do not have a clear picture of what constitutes "sexual harassment." The definition of sexual harassment continues to change. With Americans spending more time at work, the potential for intimate coworker relationships continues to grow. As these relationships blossom, they also wither, leading to more harassment complaints. According to the Society for Human Resources Management, employers receiving sexual harassment complaints saw the average number of complaints increase over a three year period from 1995 through 1997. Of the organizations surveyed, each averaged .69 complaints during 1995; however, in 1997, each organization received 1.47 complaints. This trend is unlikely to change. The shifting definition of "acceptable" workplace discussion and conduct, mixed with a culture that markets sexuality, contributes to the confusion among co-workers and will likely promote harassment claims.

Given the evolving legal concepts underlying workplace harassment law, this paper analyzes:

• the Supreme Court's new liability standard for supervisory harassment and appropriate measures an employer must take to implement an effective anti-harassment system;
• what conduct constitutes an "objectively" hostile work environment in the wake of the Supreme Court's opinions;
• the Fair Credit Reporting Act's potential application to sex harassment investigations;
• new issues arising from same-sex harassment claims;
• the numerous forms of sexual harassment outside the context of sexually intimate overtures;
• whether an isolated incident can ever constitute sexual harassment;
• off-site sexual harassment, third party conduct, and the new wave of Internet and e-mail harassment; and
• issues involving the Violence Against Women Act ("VAWA"), a new way employees can sue their employers.

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