Civil Rights and Criminal Justice: Primer on Sexual Harassment.


Series: NIJ Research in Action
Published: October 1995
14 pages
27,033 bytes

Civil Rights and Criminal Justice: Primer on Sexual
Harassment

by Paula N. Rubin

Paula N. Rubin, a lawyer, is a visiting fellow at
the National Institute of Justice, coordinating
NIJ's initiative to research, develop, and deliver
publications and training for the criminal justice
system on the Americans With Disabilities Act as
well as other civil rights and human-resources
management issues.

Highlights

This Research in Action, the seventh in a series
that examines civil rights laws as they affect the
criminal justice community, takes a close look at
sexual harassment--a form of sexual discrimination
that is in the forefront of the American
consciousness. Although the issue of sexual
harassment is one that touches all employers, its
relevance to law enforcement agencies extends
beyond the concerns associated with more
traditional settings.

Of note:

o Criminal justice agencies are vulnerable to
employee claims of sexual harassment by
supervisors or coworkers, and may also be held
responsible for the actions of nonemployees and
for harassment directed at nonemployees.

o Acquiescence to requests for sexual favors--or
even voluntary participation in sexual activity--
does not necessarily mean that the favors or
activity were welcomed by a sexual harassment
claimant.

o Workplace display of sexually explicit material-
-photos, magazines, or posters--may constitute
hostile work environment harassment, even though
the private possession, reading, and consensual
sharing of such materials is protected under the
Constitution.

o While uncommon, a single severe incident of
offending behavior may be sufficient to constitute
hostile work environment harassment.

o An agency may investigate and take action where
there is evidence of unwelcome conduct even if a
complaint has not been filed.

o Failure to investigate promptly and take
appropriate remedial action when a sexual
harassment complaint has been filed may result in
an agency being held liable for damages.

o Prevention--in the form of policy, training,
supervision, and discipline--is the best way to
avoid sexual harassment in the workplace.
------------------------------

Sexual harassment is not new, nor are legal
remedies against it. It has been recognized for
nearly 20 years as a form of sex discrimination
under the Civil Rights Act of 1964. However,
allegations of improper behavior in the business
world and in all branches of government, at
Federal, State, and local levels, have become
commonplace in today's society. Inevitably, these
have resulted in a heightened public awareness
about sexual harassment. And, as the Nation's
consciousness has risen so has the number of
complaints alleging sexual harassment. 

How is criminal justice affected by this issue?
Obviously, allegations of sexual harassment in the
workplace are not confined to the private sector.
Police and corrections have their share of claims.
Exposure to liability exists not only for the
conduct of employees, but in the treatment of
inmates, persons in custody or under supervision,
and others having reason to interact with criminal
justice professionals as well.

The intersection between sexual harassment and
criminal justice can best be seen within a legal
context. What is sexual harassment? How does this
form of discrimination happen in the workplace?
Finally, what can agencies do to limit their
exposure to liability for claims of sexual
harassment and to prevent it from happening within
their ranks?

Legal overview

The Civil Rights Act of 1964 (the Act) makes it
illegal to discriminate on the basis of race,
color, religion, age, national origin, and sex.1
Title VII of the Act prohibits employers from,
among other things, discriminating on the basis of
sex with respect to compensation, terms,
conditions, or privileges of employment. In
addition, another form of sex discrimination is
sexual harassment.

Sexual harassment in employment has been defined
as unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct that
enters into employment decisions and/or conduct
that unreasonably interferes with an individual's
work performance or creates an intimidating,
hostile, or offensive working environment. This
guideline identifies two forms of sexual
harassment: (1) quid pro quo harassment; and (2)
hostile work environment harassment. In the first
type, the harasser demands sexual conduct as a
condition for receiving a tangible benefit (note,
however, a claimant might acquiesce to the demand,
receive the benefit and nevertheless still have a
claim2). In the second type, the work environment
becomes so offensive as to adversely affect an
employee's job performance.

Quid pro quo harassment. Loosely translated, "quid
pro quo" means "something for something." This
type of harassment occurs when an employee is
required to choose between submitting to sexual
advances or losing a tangible job benefit. An
essential aspect of quid pro quo harassment is the
harasser's power to control the employee's
employment benefits. This kind of harassment most
often occurs between supervisor and subordinate.

A claim of quid pro quo harassment must meet
several criteria:

o The harassment was based on sex.

o The claimant was subjected to unwelcome sexual
advances.

o A tangible economic benefit of the job was
conditional on the claimant's submission to the
unwelcome sexual advances.

In quid pro quo cases, the harassment consists of
"unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature."3 However, there is no requirement
that these requests be express demands for sexual
favors.4 The advances may be implied by the
circumstances and actions: for example, inviting a
claimant out for drinks or offering the claimant
sexually explicit magazines.

A hallmark of a sexual harassment claim, whether
it be quid pro quo or hostile work environment
harassment, is that the advances are unwelcome.
"Unwelcome" means that the person did not invite
or solicit the advances. This is determined by an
objective standard and not the claimant's
subjective feelings. 

On the other hand, acquiescence or even voluntary
participation in sexual activity does not mean
that the advances were not unwelcome.5 One factor
to consider is whether the person indicated that
the advances were unwelcome notwithstanding
acquiescence. 

Hostile work environment harassment. Hostile work
environment harassment is unwelcome conduct that
is so severe or pervasive as to change the
conditions of the claimant's employment and create
an intimidating, hostile, or offensive work
environment. In the landmark case of Meritor
Savings Bank v. Vinson,6 the U.S. Supreme Court
found that a hostile work environment amounts to
unlawful sex discrimination even in the absence of
the loss of a tangible job benefit.

What distinguishes hostile work environment
harassment from quid pro quo harassment? There are
several differences. Hostile work environment
harassment:

o Does not require an impact on an economic
benefit.

o Can involve coworkers or third parties, not just
supervisors.

o Is not limited to sexual advances; it can
include hostile or offensive behavior based on the
person's sex.

o Can occur even when the conduct is not directed
specifically at the claimant but still impacts on
his or her ability to perform the job.

o Typically involves a series of incidents rather
than one incident (although a single offensive
incident may constitute this type of harassment).

Three criteria must be met in a claim of
harassment based on a hostile work environment:

o The conduct was unwelcome.

o The conduct was severe, pervasive, and regarded
by the claimant as so hostile or offensive as to
alter his or her conditions of employment.

o The conduct was such that a reasonable person
would find it hostile or offensive.

Since this form of sexual harassment does not
require the unwelcome conduct to involve sexual
advances, other actions may give rise to a claim
of hostile work environment. Obviously,
gender-based actions such as calling the claimant
derogatory names (including names referring to
body parts or reproductive anatomy) could be
actionable depending on the severity and the
pervasiveness. Forms of hazing used to intimidate
or dominate the claimant, such as insulting
remarks, threats, or negative graffiti, may also
constitute this type of harassment. Even actions
not directed at a particular claimant may be
considered hostile work environment harassment,
e.g., the display of sexually explicit materials
such as posters, pin-ups, and magazines. 

In proving a claim of hostile work environment
harassment, courts look at the totality of the
circumstances. Severity and pervasiveness are
pivotal. The more severe the conduct, the less
pervasive it may need to be. Conversely, the more
pervasive the conduct, the less severe it may need
to be. That is why, although rare in hostile work
environment cases, a single severe incident may
still constitute this kind of harassment.11
Severity of conduct may depend on whether the
action is physically threatening or degrading, in
contrast to offensive language. Pervasiveness is
also more likely to be found in cases where there
is more than one harasser.

A determining factor in a claim of hostile work
environment harassment is that the conduct
unreasonably interferes with the claimant's work
performance.12 "Unreasonable interference" means
that the offensive conduct made it more difficult
for the complainant to do his or her job.

By what standard is hostile work environment
determined? Courts will generally use a
"reasonable person" standard. That means that a
reasonable person's work environment would be
affected by the conduct. In addition, a 1991
circuit court decision allowed a female plaintiff
to assert a "reasonable woman" standard.13 This
standard seeks to eliminate the perceptions that a
reasonable male might have about what constitutes
offensive, unwelcome conduct. 

On the other hand, courts have refused to simply
consider how the claimant perceived his or her
work environment. In other words, Title VII does
not serve as "a vehicle for vindicating the petty
slights suffered by the hypersensitive."14

Must the claimant suffer injuries to prevail and,
if so, how much? The   U.S. Supreme Court offered
guidance in the case of Harris v. Forklift.15 To
prevail on a claim of hostile work environment
harassment, the conduct need not seriously affect
an employee's psychological well-being nor cause
an injury. The decisive issue is whether the
conduct interfered with the claimant's work
performance.

Implications for criminal justice

Sexual harassment may impact on criminal justice
agencies in two ways. First, claims from employees
expose the agency to liability in its capacity as
an employer. Second, the agency may also be sued
by third parties claiming to have been harassed by
persons under the authority or control of the
agency. Often these claims are brought under the
Civil Rights Act of 1871 (42 U.S.C. Section 1983).
Section 1983 imposes liability on any person who,
under color of State law, deprives a person of
rights guaranteed by Federal law.

Agency liability. The degree to which a criminal
justice agency can be held responsible for the
actions of its employees depends on the type of
harassment complaint filed and the identity of the
claimant. Employers have consistently been found
strictly liable for quid pro quo harassment by
supervisors under their authority.

Strict liability is a legal standard that imposes
liability even though the employer had no
knowledge of the unlawful conduct. So, for
example, if a superior officer makes sexual favors
a condition of a subordinate's promotion, the
department will be held liable even if it did not
know about the superior officer's demands.

On the other hand, criminal justice agencies will
not be automatically liable for claims by their
employees of hostile work environment harassment.
When hostile work environment harassment by a
supervisor is alleged, employer liability will
turn on such things as whether the employer had
notice of the conduct, the means by which the
harassment was committed, whether the claimant had
the chance to complain about the conduct, what the
employer did in response to any complaint or
knowledge of the conduct, and what preventive and
remedial measures the employer has taken. Some
courts have, however, taken a broader approach to
impose liability.16

When is the agency charged with knowledge of
harassing conduct? That is, when will an agency
without formal knowledge of the conduct be deemed
to know that the offensive conduct exists? When a
complaint is filed with someone high enough in the
agency to infer notice to the agency; when
supervisors see the offending conduct; or when the
harassment is so pervasive that the agency should
have known it was going on. For example,
"pervasive graffiti and pornography can give rise
to an inference of knowledge on the part of the
employer."17

Agency liability is not limited to the abuse of
power between supervisor and subordinate, nor the
actions of co-workers. Inmates, suspects,
arrestees, crime victims, and others having
interaction with the agency can be involved in
this unlawful conduct. In these instances the
agency may be liable if the agency, its agents, or
supervisory employees knew or should have known of
the conduct but failed to take immediate action.

If a complaint is filed. An essential part of
limiting an agency's liability for sexual
harassment is the action it takes when a complaint
is filed or, in cases where there is no complaint,
when the agency knows or should have known of the
offensive conduct. The worst thing an agency can
do is nothing. A Federal jury in Los Angeles
awarded $3.9 million to two female police officers
who alleged that male co-workers sexually harassed
them and their supervisors ignored their
complaints.18 Conversely, an employer's prompt and
appropriate response to complaints can limit its
liability.19

A failure to take prompt, remedial action can
result in an agency being held liable for an award
of damages. These may include back pay (limited to
2 years prior to the filing of an EEOC charge),
front pay, and compensatory damages. Punitive
damages, while recoverable by employees in the
private sector, are not available to governmental
employees.

Here are some steps to take when a complaint is
filed:

o Act immediately. Take every complaint seriously.
Do not assume that the problem will work itself
out or go away on its own. A delay in taking
action might be viewed as tacit approval of the
conduct.

o Investigate and act on every complaint. This
includes even those claims where victims minimize
the incident(s). Often victims of sexual
harassment are embarrassed or ashamed of the
incident and may be reluctant to talk about it.
The person responsible for handling sexual
harassment complaints should conduct a thorough
investigation or cause one to be conducted. Anyone
and everyone involved in the incident(s) should be
interviewed. Interviews should endeavor to answer
who, what, where, how, and when. They should be
conducted in private and their contents kept
confidential.

o Keep accurate records of the investigation. It
is a good idea to document all phases of the
investigation from receipt of the complaint
through any remedial action taken. These records
may be valuable evidence of measures taken by the
agency.

o Ensure that there is no retaliation against the
complainant.

Preventing sexual harassment 

No matter how flawless the investigation or how
quickly and fairly a complaint is handled by the
agency, prevention is still the best approach to
sexual harassment. Criminal justice agencies
should consider building their prevention programs
around four areas: policy, training, supervision,
and discipline.

Policy. Every criminal justice agency should have
a policy that clearly states that the agency
prohibits any type of sexual harassment. However,
having such a policy is not enough; it must be
communicated to all employees and consistently and
fairly enforced. To the extent practical, agencies
should consider posting the policy for a period of
time in employee work areas, locker rooms, or
break rooms. Thereafter, copies should be kept in
accessible locations. In addition, the policy
should be included in any employee handbooks.

At a minimum, any sexual harassment policy should
include:

o A statement that the criminal justice agency
will not tolerate sexual harassment.

o A definition of sexual harassment, including
examples of quid pro quo and hostile work
environment harassment. 

o A statement advising employees of the agency's
grievance procedure and requiring employees to
immediately report incidents.

o A statement that complaints will be taken
seriously and investigated immediately.

o A statement of the penalty for violating the
policy.

o A statement that all employees are to treat each
other professionally and respectfully.

Training. Having a policy and talking about sexual
harassment in a vacuum is often not enough.
Criminal justice agencies should consider putting
these ideas into a context to ensure that
employees understand what sexual harassment is.
Conducting sexual harassment training is an
effective way to communicate the agency's policy.

Training should:

o Identify and describe forms of sexual harassment
and give examples.

o Outline the agency's grievance procedure,
explain how to use it, and discuss the importance
of doing so.

o Discuss the penalty for violating the policy.

o Emphasize the need for a workplace free of
harassment, offensive conduct, intimidation, or
other forms of discrimination.

Supervision. A policy against sexual harassment is
only as good as the supervisors who enforce it.
For that reason, supervisors should be taught how
to build and maintain a professional work
environment. 

Training should cover such matters as:

o How to spot sexual harassment.

o How to investigate complaints including proper
documentation.

o What to do about observed sexual harassment,
even when no complaint has been filed.

o How to keep the work environment as professional
and nonhostile as possible.

Discipline. The agency's grievance procedure
should be clearly delineated and communicated to
all employees. In addition, to ensure that this
grievance procedure is credible, it should be
strictly and promptly followed. This is especially
important since courts look at the action taken by
employers in determining liability. When
violations occur, proper disciplinary action
should follow. Consider the following measures:

o Informing employees in advance of conduct that
may result in immediate dismissal or in
disciplinary action; in the latter case, describe
the penalties involved.

o Following up on an incident, after an interval
of time, to make sure the problem has not
returned.

o Counseling all parties, and training (or
retraining) all employees in cases where
harassment has been alleged but cannot be
determined. 

o Repeating assurances that sexual harassment will
not be tolerated.

Conclusion 

Sexual harassment is as common to the field of
criminal justice as to any other area of American
enterprise, and the laws regarding how it should
be regarded and dealt with apply to criminal
justice agencies as much as to private sector
workplaces. Awareness of the law and the
consequences for disregarding it should guide
criminal justice managers in effectively carrying
out their responsibilities and avoiding
liabilities for the agencies they administer.

Notes
1 42 U.S.C. 2000-2(a)(1).

2 Kariban v. Columbia University, 14 F.3d 773 (2nd
Cir. 1994).

3 EEOC Guideline 1604.11(a).

4 See: Nichols v. Frank 22, 9th Cir., December 12,
1994. 

5 See: Kariban v. Columbia.

6 477 U.S. 57, 40 FEP Cases 1822 (1986).

7 Lindemann, Barbara and David D. Kadue, Primer on
Sexual Harassment, Bureau of National Affairs,
Inc., Washington, D.C., 1992, p. 32 citing
Hubebschen v. Department of Health and Human
Services, 716 F.2D 1167, 32 FEP Cases 1582 (7th
Cir. 1983).

8 State ex rel. Rice v. Bishop, 858 S.W. 2d 734
(Mo.App. 1993) as reported in Fire & Police
Personnel Reporter, January 1994, p. 12.

9 Battle v. Seago, 431 S.E.2d 148 (Ga. App. 1993);
McKenzie v. State of Wis. Department of
Corrections, 762 F. Supp. 255 (E.D. Wis. 1991);
case later dismissed as frivolous.

10 Johnson v. Los Angeles County Fire Department,
DC C Calif., CV 93-7589, October 28, 1994.

11 Huitt v. Market Street Hotel Corp., 62 FEP 539
(D.Kan. 1993).

12 EEOC Guidelines 1604.11(a)(3).

13 Ellison v. Brady, 924 F.2d. 872, 54 FEP Cases
1346, republished as amended, 55 FEP Cases 111
(9th Cir. 1991); See also: Jensen v. Eveleth
Taconite Co., 824 F. Supp. 847 (D. Minn. 1993).

14 Zabkowicz v. West Bend Co., 589 F. Supp. 780,
784, 35 EPD Par. 34, 766 (E.D. Wis. 1984).

15 114 S.Ct. 367 (1993).

16 See: Kariban v. Columbia.

17 Primer on Sexual Harassment, p. 59.

18 Clerkin v. City of Long Beach; Allison v. City
of Long Beach, U.S. Dist. Ct. (CD Cal. 1991) as
reported in Fire and Police Reporter, November
1991, p. 170.

19 Beardsley v. Isom, 828 F. Supp. 397 (E.D. Va.
1993); aff'd Beardsley v. Webb, 30 F.3d 524 (4th
Cir. 1994).

Areas of concern for criminal justice
professionals.

Here are some frequently asked questions about
sexual harassment:

Q: Is sexual harassment limited to conduct toward
women?

A: Obviously not. This form of discrimination is
gender based. "Female supervisors who use their
power to exact sexual favors from male
subordinates similarly are harassing their
subordinates on the basis of gender."7 Conduct
that is motivated by a person's sex may give rise
to sexual harassment. Moreover, the offensive
conduct does not have to be explicitly sexual to
be actionable.

Q: Does a complaint need to be lodged for an
agency to investigate and take action?

A: No. The fact that a person fails to complain is
not determinative. Agencies may take appropriate
action when there is evidence of unwelcome
conduct. In one instance, a male police sergeant
was suspended for 5 days for making sexually
suggestive remarks to a female subordinate even
though the woman did not file a complaint. The
chief took remedial action by suspending the
sergeant. The chief's actions were upheld by the
Board of Police Commissioners and a three-judge
appellate court.8

Q: Do inmates and others held in custody have the
right to sue for sexual harassment? 

A: Yes, sexual harassment of inmates by prison or
jail employees is actionable. The inmate could sue
for damages under Federal statute 42 U.S.C. 1983.
A lawsuit brought under this law is based on a
claim that a governmental entity deprived the
individual of a constitutional right. Courts have
held that prisoners are entitled to protection
under the eighth amendment to be free from sexual
harassment at the hands of prison staff.9 The
plaintiff would need to allege facts demonstrating
unlawful conduct in support of the claim.

Q: Should sexually explicit materials, such as
posters and magazines be banned from criminal
justice facilities to avoid claims of hostile work
environment?

A: That depends. A recent Federal court decision
in California held as unconstitutional a fire
department policy banning sexually oriented
magazines in Los Angeles county firehouses as part
of its sexual harassment policy.10 The court found
that private possession, reading, and consensual
sharing of such magazines is protected by the
first amendment to the Constitution. A critical
element of the court's decision rested on the
private nature of the possession and use of such
materials. When sexually explicit materials are
not private but are public, then their presence
may rise to the level of actionable sexual
harassment. Examples of public displays of such
materials may include: obscene cartoons, sexually
oriented pictures in the workplace, sexually
oriented drawings or graffiti on pillars and other
public places in the workplace. 

This research is supported under award number 92-
IJ-CX-0009 from the National Institute of Justice,
Office of Justice Programs, U.S. Department of
Justice. Points of view in this document are those
of the author and do not necessarily represent the
official position of the U.S. Department of
Justice.

Findings and conclusions of the research reported
here are those of the authors and do not
necessarily reflect the official position or
policies of the U.S. Department of Justice. 

Listed below are selected NIJ publications related
to issues of criminal justice and the ADA. 

These publications can be obtained free from the
National Criminal Justice Reference Service
(NCJRS): telephone 800-851-3420,e-mail
askncjrs@ncjrs.aspensys.com, or write to NCJRS,
Box 6000, Rockville, MD 20849-6000.

Please note that when free publications are out of
stock, they are available in photocopies for a
minimal fee or through interlibrary loan. They 
are also usually available on the NCJRS Bulletin
Board System or on the Department of Justice
Internet gopher site for downloading. Call NCJRS
for more information.

McDonald, Douglas, C., Ph.D and Michele
Teitelbaum, Ph.D., Managing Mentally Ill Offenders
in the Community: Milwaukee's Community Support
Program, NIJ Program Focus, March 1994, NCJ
145330.

Rubin, Paula N., Civil Rights and Criminal
Justice: Employment Discrimination Overview,
Research in Action, June 1995, NCJ 154278.

Rubin, Paula N. and Toni Dunne, The Americans With
Disabilities Act: Emergency Response Systems and
Telecommunications Devices for the Deaf, Research
in Action, February 1995, NCJ 151177.

Rubin, Paula N., The Americans With Disabilities
Act and Criminal Justice: Hiring New Employees,
Research in Action, August 1994, NCJ 147479.

Rubin, Paula N., The Americans With Disabilities
Act and Criminal Justice: An Overview, NIJ
Research in Action, September 1993, NCJ 142960.

Rubin, Paula N. and Susan W. McCampbell, The
Americans With Disabilities Act and Criminal
Justice: Providing Inmate Services, Research in
Action, July 1994, NCJ 148139.