A Threat Alone Can Be Discrimination
Consider this scenario: A woman interviews for a job. A vice president in the company stares at her breasts and legs during the interview and asks whether she is “practicing” to have a family. Although she is uncomfortable, she takes the job because it is a good opportunity and she needs the money.
The two work in different cities. During business calls, the vice president makes comments like, “How are those legs of yours?” and “It must be hard for a woman like you to have a job like that--a woman with great legs.” During one conversation, he says he has no time to talk to her unless she first tells him what she’s wearing. On one business trip, he says, “You know, I could make your life very hard or very easy.” At an office party, he pats her buttocks and stares at her legs.
During her performance review, he tells her he has reservations about promoting her. She asks whether it is because she is not “loose” enough for him, and he says yes. He promotes her anyway, but suggests that she sleep with him.
Does this woman has a sexual harassment claim? She was promoted and received raises. Some argue that since she advanced in her job, she didn’t suffer what’s legally called “tangible” job detriment or “economic injury,” and thus does not have a sexual harassment claim.
Sound familiar? Lack of evidence of tangible job detriment was one of the reasons Judge Susan Webber Wright dismissed Paula Jones’ case. Among other things, Wright said that since Jones’ pay wasn’t cut and she wasn’t demoted, she didn’t have a sexual harassment claim.
While Wright’s ruling does not set precedent outside of her Arkansas district, the Supreme Court’s ruling on this very issue in the case described above, Burlington Industries vs. Ellerth, will be the law of the land. In Burlington, to be argued today, the court will answer the question: If one doesn’t suffer any job loss, pay cut, demotion or other tangible job detriment for refusing sexual advances, does the threat of job consequences alone amount to sexual harassment?
We argue that it does.
Sexual harassment causes serious harm even when there is no obvious loss of economic benefits, by creating a discriminatory burden that makes the job more difficult for harassed employees. The appeals court found that the facts of Kimberly Ellerth’s case constituted sexual harassment because the supervisor’s conduct affected the “terms and conditions” of her job under Title VII of the Civil Rights Act of 1964, the federal law that prohibits sex discrimination in employment. Recognizing that sexual harassment can cause a wide range of harms is central to Title VII’s underlying goals. Nothing in the law limits sexual harassment to “tangible” or economic injury.
Title VII prohibits two forms of sexual harassment: hostile environment and quid pro quo. Hostile environment sexual harassment consists of unwelcome sexual comments or conduct that is so severe or pervasive that it creates a hostile work environment.”Quid pro quo” literally means “this for that.” It occurs when a supervisor requests sexual favors of a subordinate in exchange for a job benefit or risk loss of a benefit. For example, “sleep with me or you’re fired,” or as in Ellerth’s case, “I can make your life very hard or very easy.” The Supreme Court already has ruled that plaintiffs do not need to establish “tangible” or economic harm to win a hostile environment case. There is no principled reason for creating a different rule for quid pro quo sexual harassment.
In fact, forcing someone who is being harassed to demonstrate “tangible” or economic job detriment unduly penalizes women who, like Ellerth, are strong enough to hang onto and even perform well in their jobs in the face of harassment. For most women, keeping their job is an economic necessity. Victims of discrimination, and sexual harassment in particular, often fear retaliation for coming forward. One California study found that 50% of women who complained of sexual harassment were fired.
One frequent argument is that those charging sexual harassment need to show economic harm so that they have something to recover in court. In fact, while money damages is one form of relief, it is not the only kind available. Courts can, for example, order an employer to implement a comprehensive anti-harassment policy or conduct sexual harassment training for its employees.
The Supreme Court is expected to rule in Burlington vs. Ellerth by late June. Title VII’s clear mandate to deter discrimination and provide redress to the victims of discrimination argues for recognition that the threat of retaliation alone is sexual harassment. Just ask Kimberly Ellerth, who finally quit her job rather than continue to be harassed and threatened.
