There Ought to Be a Law

Sexual harassment is not the normal healthy interactions which have been taking place between men and women for as long as there have been men and women.

Introduction to Dade County Affirmative Action's sexual harassment training handbook

Sexual harassment legislation, long a murky area in the law, has begun to gain clarity in recent years, with two important legal decisions - one in the U.S. Supreme Court, one in Florida's high court - that have strengthened the prohibition of sexual harassment and reinterpreted the standard for awarding damages in some lawsuits.

Sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC), the federal agency established to address employment discrimination claims, as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Courts generally recognize two kinds of sexual harassment claims: quid pro quo claims, which require proof that sexual behavior was used as a factor in specific employment decisions (hiring, firing, promotions); and hostile work environment claims, which need show only that sexual misconduct interfered with the smooth and equitable operation of a workplace.

Until the mid-Eighties, sexual harassment claims could proceed from common-law charges (invasion of privacy, for instance, or criminal negligence, or sexual battery), but were not unequivocally covered in federal statutes. Then, in the 1986 U.S. Supreme Court case of Meritor Savings Bank v. Vinson, the Court expressly classified workplace sexual harassment as unlawful gender discrimination under the terms of the federal Title VII statute, which prohibits employment discrimination against any individual on the basis of race, color, national origin, or sex. "Without question," wrote the Court, "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor `discriminates' on the basis of sex."

Another area of significant recent development is the adjustment of the standard for awarding damages in sexual harassment trials. Prior to a 1989 Florida Supreme Court decision, Florida worker's compensation statutes restricted awards in such cases to back pay. Even if a court found that an employer had sexually harassed a worker, the most the victim could receive was back pay for lost work. Many lower courts rejected outright any claims that sought additional damages.

But in 1989 Miami attorney Robert Weisberg argued before the Florida Supreme Court to challenge the application of the worker's compensation law. In the case, Byrd v. Richardson-Greenshields Securities, Inc., the justices reinterpreted the standard for awarding damages in common-law trials, ruling that exclusive implementation of worker's compensation remedies impaired the effectiveness of anti-sexual harassment measures. As a result, plaintiffs who now claim common-law violations involving workplace sexual harassment may request both compensatory and punitive damages in a jury trial.

While the Byrd case does represent a substantial gain, Weisberg cautions that many legal battles have yet to be waged. "The restriction to worker's compensation has been removed, and that's a gain," he says. "But Byrd just opened the courthouse door. Now the question is what can be done once you get in."

Marcia Saunders, director of Dade County Affirmative Action, is optimistic that recent developments will provide sufficient protection. "We live in a society where it's long been acceptable for men to compliment women, tug on them. There's this rationale of `boys will be boys,' and women have been handling sexual harassment in the workplace ever since they've been in the workplace. Some people use it to their advantage - some secretaries become vice presidents because of it," she says. "Other people's lives have been made miserable: `If you won't come across, I'll give you the dirty schedule.' I'm happy to see that the laws for these things are finally in place.


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