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Article Excerpt
INTRODUCTION
I. HISTORY OF SEXUAL HARASSMENT LEGISLATION II. EXAMPLES OF DIFFERING CULTURAL VIEWPOINTS REGARDING SEXUAL HARASSMENT AND PERCEPTION OF THE HOSTILE ENVIRONMENT A. Brazil as an Example of South American Culture B. Europe C. Asia III. MAJOR MODELS OF CROSS-CULTURAL UNDERSTANDING APPLIED TO SEXUAL HARASSMENT IV. THE DOCTRINE OF ORDERED LIBERTY AS APPLICABLE TO THE PERCEPTION OF SEXUAL HARASSMENT V. THE LEGAL RELEVANCE OF CULTURAL PSYCHOLOGY RESEARCH IN SEXUAL HARASSMENT PERCEPTION AND REPORTING: EDUCATION, LITIGATION, AND POLICY A. Education B. Litigation C. Policy and Standards CONCLUSION
INTRODUCTION
Globalization continues to fuel multiculturalism and diversity in the workplace, and few employers can afford to ignore the culturally-based experiences that their employees bring to their work lives. (1) In this context, sexual harassment must be understood in terms of cross-cultural perspectives. Even within a single culture, the definition of sexual harassment is often misunderstood and is the subject of considerable debate in legal, psychological, and human resource management literature, both domestically and abroad. (2) Defining the concept of sexual harassment becomes even "more complex and controversial in multicultural environments where culturally-derived values and beliefs serve as norms that determine when certain behaviors and feelings are appropriate and when they are not." (3) Whether employees perceive workplace conduct--particularly ambiguous conduct--to be sexually harassing will be influenced by their respective cultural backgrounds. Similarly, an employer's response to such conduct and the manner in which it deals with the resultant issues will be influenced by cultural determinants. In order to demonstrate the consequences of viewing sexual harassment from a cross-cultural perspective, these cultural factors must be evaluated in the context of at least three major areas related to sexual harassment law and policy: (1) education in diversity, for both managers and employees; (2) application of cultural psychology research to those court cases in which it is relevant; and (3) reconsideration of the policies and standards applied to individual recipients from differing cultural backgrounds who are alleged victims of sexual harassment.
I. HISTORY OF SEXUAL HARASSMENT LEGISLATION
Title VII of the Civil Rights Act of 1964 is the foundation for sexual harassment claims. Yet Title VII was written long before the concept of sexual harassment was clearly defined or recognized as worthy of the significant concern we afford the issue today. (4) Section 703(a)(2) of the Civil Rights Act provides:
It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex .... (5)
The framers of section 703 sought to "ensure ... gender equality in hiring, firing, pay, promotion, and education opportunities." (6) Indeed, "[t]hey were not thinking of sexual harassment as a form of sex discrimination." (7)
While sexually exploitive and harassing behavior in the workplace clearly predates the Civil Rights Act, the notion that such behavior constituted actionable discrimination under Title VII did not develop until the 1970s--a decade marked by rising percentages of women in the workforce and strengthening of the women's movement. (8) Still, early cases arguing for relief from sexual harassment under a theory of sex discrimination were generally unsuccessful until 1977, when the Court of Appeals for the District of Columbia Circuit held in Barnes v. Costle that the retaliation for refusal of sexual favors constituted discrimination "because of ... sex" under Title VII. (9) In other words, as of 1977, sexual harassment could be found to violate laws against sexual discrimination. (10) Additionally, in 1980, the Equal Employment Opportunity Commission (EEOC) issued guidelines that characterized sexual harassment in the workplace as a form of sex discrimination, defining sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature." (11) Sexual harassment had finally entered the realm of actionable acts of discrimination in employment.
Two forms of actionable sexual harassment were delineated by the EEOC guidelines: quid pro quo harassment and hostile environment harassment. (12) Quid pro quo harassment refers to threats or promises of job-related consequences resulting from the withholding or giving of sexual favors. The demands for such favors may be explicit or implicit, but the job benefits to be gained or lost must be tangible (e.g., promotion, job retention or loss, desired assignments, transfer). Even a single act of quid pro quo harassment is actionable. (13)
The hostile environment type of sexual harassment, by contrast, occurs where a work environment becomes so intimidating, hostile, or offensive--due, for example, to overt sexual language or physical conduct--that the victim becomes uncomfortable, embarrassed, or even impaired in his or her ability to perform work functions. For an employee to prevail in a hostile work environment claim, he or she must demonstrate that "the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create an abusive working environment." (14) To be considered pervasive, the conduct must be "repeated, continuous and concerted," and not merely an isolated incident or occasional occurrence. (15) Moreover, to sustain a hostile environment claim, the conduct must have been unwelcome--that is, the conduct was neither invited nor incited by the complaining party--and the complainant must have clearly indicated that the conduct was unwelcome. (16)
Hostile environment sexual harassment encompasses a wide range of behaviors including, inter alia, displays of sexually-explicit materials, sexually-charged or demeaning jokes, derogatory names or epithets, physical advances, repetitive requests for dates, repeated comments on physical appearance, and sexually-charged body language or facial expressions. (17) The terms and conditions of employment need not have been tangibly affected, even if the offending conduct had the purpose of unreasonably interfering with the victim's work performance. (18) To be actionable, the conduct at issue must have been tinged with offensive sexual content and must have demonstrated discrimination based on sex. (19) The range of circumstances considered includes the frequency, severity, physical nature, associated humiliation, and job interference inherent in the harassing behaviors. (20) As a precondition to an actionable harassment claim, would-be plaintiffs must first utilize any procedures established by the employer for prevention and correction of sexual harassment. (21) The concept of hostile environment is both complicated and imprecise, leaving many issues for the courts to resolve. Among these are the difficult tasks of defining the boundaries of mere unpleasantness and actionable discrimination, as well as whether psychological harm must be demonstrated to establish a hostile environment.
The Supreme Court attempted to reconcile some of these issues in its 1986 decision Meritor Savings Bank, FSB v. Vinson, in which the Court defined an abusive work environment as being more than simply offensive but not necessarily causative of psychological damage. (22) In 1993, Justice O'Connor, writing for the majority in Harris v. Forklift Systems, established two requirements for harassing behavior to meet the standard for constituting a hostile environment: (1) the environment must have been such that a "reasonable person in the plaintiff's position," considering "all the circumstances" would find it hostile or abusive (now considered the objective standard); (2) and there must be some evidence--though not necessarily psychological injury--that the victim subjectively perceived the environment as abusive (now considered the subjective standard). (23) A claim of harassment must meet both the objective and subjective standards in order for it to be recognized by a court as achonable. (24) The American Psychological Association (APA) submitted an amicus curiae brief in Harris arguing that causation of psychological injury should not be the major criterion for determining the existence of a hostile environment, as this would penalize the psychologically hardier, discourage reporting, and reduce the possibility of recovery. (25) Moreover, the APA brief argued that a hostile environment could likely lead to serious effects on equal employment opportunities: forcing job changes, loss of reputation, working alliances, exclusion from certain work environments, alteration of motivation and confidence, distraction, or lowered self esteem-without leading to objectifiable mental illness. (26) While avoiding the damage and confusion the APA predicted would occur if a psychological injury requirement had been adopted, Harris's "reasonable person" standard remained controversial. To this day, the reasonable person standard continues to be questioned in court.
Two years prior to Harris, in Ellison v. Brady, the United States Court of Appeals for the Ninth Circuit adopted the "reasonable woman" standard (in lieu of a "reasonable person" standard), explaining that a comprehensive understanding of a woman's view was required, as men's and women's perspectives regarding objectionable conduct tended to vary. (27) Before Ellison, the "reasonable victim" standard had occasionally been used, although typically it had been utilized interchangeably with the "reasonable woman" standard. (28) Since Ellison, the "reasonable woman" standard has surfaced periodically (with divergent responses as to its appropriateness in different circuit courts), although it has never been adopted (nor has its legitimacy been commented upon) by the Supreme Court. (29) For instance, the plaintiff in Harris argued for the "reasonable woman" standard, but the Court continued to apply the standard of the "reasonable person in the position of the plaintiff." Yet the Court also encouraged judges to assess each victim's circumstances in reaching a determination. (30)
The EEOC itself in 1993 defined harassment as an experience that a reasonable person in the same or comparable circumstances would find to be "'intimidating, hostile, or abusive,'" although the EEOC added that gender needed to be considered as part of the circumstances considered. (31) In the 1998 case of Oncale v. Sundowner Offshore Services, the Supreme Court applied the Harris hostile environment standard to a male-male sexual harassment case, i.e., "the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" (32) Despite the Court's adherence to a "reasonable person" standard, social science research on gender differences in perceiving potentially harassing behaviors proliferated throughout the 1990s. (33)
Extensive research has been done to investigate the gender differences in perception of sexual harassment; while a few researchers have found no difference, most of the research has indicated at least some gender difference, with women more likely than men to consider a given behavior harassing. (34) Prof. Jeremy Blumenthal undertook a meta-analysis of studies on gender differences in perception of harassment published between 1982 and 1996. He determined that only weak empirical evidence for gender differences existed (particularly in legal scenarios of harassment), thereby casting doubt upon the argument for a "reasonable woman" standard. (35) Moreover, studies demonstrated that there existed little difference in legally-relevant judgments made by mock jurors regardless of whether the "reasonable person" or "reasonable woman" standard was applied. (36) More recent research by Prof. Elizabeth Shoenfelt, Allison Maue, Esq., and Joann Nelson, Esq., found that while women were more likely than men to perceive flirtatious behaviors as sexually harassing, the argument over "reasonable person" versus "reasonable woman" was moot; the standard used made no difference in outcome. (37)
From the point of view of eliminating discrimination, some legal analysts have raised the concern that using the "reasonable woman" standard might actually perpetuate discrimination by: (1) reinforcing stereotypes of women as more delicate, less rational, or less capable of handling job pressures; (2) inviting judges and juries to impart biases about the thinking of women; (3) ignoring the shrinking differences between men and women, as work lives become increasingly more similar; and (4) failing to provide a standard for men harassed by women or other men. (38) Yet the "reasonable woman" standard has opened the door to further explorations regarding unique experiences that influence individuals--both men and women--in perceiving sexual harassment. (39)
A number of variables besides gender might prove influential in shaping perceptions of sexual harassment, particularly in regard to what constitutes the perception of a hostile environment. Gender differences in perceptions of sexual harassment (i.e., women identifying harassment to a greater degree than men) become most apparent when the reported occurrences contain observations that are vague, unclear, or ambiguous or when the parties are giving conflicting reports. Cultural differences may well alter perceptions of sexual harassment, particularly in such unclear situations. (40) Shoenfelt, Maue, and Nelson suggest that one of the weaknesses of the "reasonable woman" standard has been its basis on values and beliefs of the middle-class Caucasian woman; they suggest that the perception of sexual harassment is altered by variables such as race, ethnicity, and religion. (41) Both Blumenthal and the APA brief in Harris suggested the use of a "reasonable victim" standard when evaluating the existence of a hostile environment, with an emphasis on perceptions of exploitation and victimization rather than specific gender-related experiences. (42) With several alternative standards already in existence, there still exists the need for incorporation into at least one of the standards for "the study of other variables such as attitudes to women, to homosexuals, to sex-role stereotyping, and to personal experiences of harassment." (43) Cultural beliefs and values comprise key foundational elements underlying what will or will not be perceived as sexual harassment.
Burlington Industries, Inc. v. Ellerth (44) and Faragher v. City of Boca Raton, (45) both decided by the Supreme Court in 1998, created an affirmative defense for employers based on a two-pronged test: (1) whether the employer took reasonable care to prevent and correct the sexually harassing behavior, and (2) whether the employee failed to take advantage of preventive or corrective measures provided by the employer. (46) Under these requirements, an employee is obligated to act reasonably by reporting instances of sexual harassment promptly to her employer and to utilize established grievance processes. (47) It is considered unreasonable if an employee fails to report sexual harassment to an employer due to fears of confrontation, unpleasantness or retaliation. If, however, there is some objective evidence that the employee would face retaliation or confrontation at the hands of the employer, then the...
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