Whether one or a series of incidents amounts to hostile work environment harassment depends on a balancing of the severity of the incidents and their frequency. A single incident may constitute harassment, especially if the incident is prolonged, offensive and very serious in nature, e.g., sexual touching or assault. A combination of events with varying amounts of seriousness and frequency may also constitute harassment.
U.S. Approach and the Objective/ Reasonable Person Standard
In the U.S., "whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required." From Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 371 (1993). The U.S. Supreme Court further explained that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." From Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998). Whether or not the plaintiff's sex should be considered in this analysis is a matter of some debate.
Many scholars argue that the reasonable person standard may not be appropriate because studies have shown that women define sexual harassment more broadly than do men. These scholars believe that men and women have different views of sexual harassment because women fear sexual coercion to a greater degree than men and are cognizant of the way in which sexually harassing behaviors have the effect of devaluing their role in the workplace. As a result, these theorists have argued for the Court to adopt a "reasonable woman" standard in evaluating whether sexual harassment is sufficiently severe or pervasive to be actionable. In light of this argument, the U.S. Court of Appeals for the 9th Circuit has adopted a "reasonable woman" standard. In adopting this standard, the Court observed that "women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive." From Ellison v. Brady, 924 F. 2d 872 (9th Cir. 1991).
Other feminist scholars believe that the reasonable woman standard is demeaning, protective, paternalistic and poses the risk of essentialism. Application of the standard may reconstruct stereotypes about women, with the danger that the views of the wealthy, white, heterosexual majority of the group would be deemed to represent the whole group.
Adapted from Martha Chamallas, Introduction to Feminist Legal Theory 90-91 (2003); William Petrocelli & Barbara Kate Repa, Sexual Harassment on the Job: What It Is & How to Stop It (1998); and A Meta-Analytic Review of Gender Differences in Perceptions of Sexual Harassment, Journal of Applied Psychology, Maria Rotundo et al., October 2001 (analyzing 62 studies about how men and women define sexual harassment and finding that there is little difference in what both genders believe constitutes the more serious types of harassment, but does find gender-based disagreement about the more subtle forms of harassing behavior).
U.K. and South African Approach: The Subjective Standard
The UK employment tribunal, the EAT, has provided some guidance as to the severity or frequency of harassment required for hostile work environment sexual harassment claim. The tribunal has held that a severe single incident of sexual harassment, such as forced sexual touching by a manager, would amount to discrimination. From Bracebridge Engineering Ltd. V. Darby (1989, IRLR 3, EAT).
In Reed & Bull Information Systems v. Stedman (1999, IRLR 299, EAT), the employment tribunal endorsed a subjective standard by which to evaluate hostile work environment claims. "The Employment Appeal Tribunal held that it was for the individual concerned to decide what behavior they found offensive and the fact that another person might not do so did not undermine the claim." In Driskell v. Peninsula Business Services & Others (2000, IRLR 151, EAT) (Word Doc), the tribunal further explained that this standard requires taking into account the sex of the parties. For example, "when deciding whether sexual banter does amount to sex discrimination, the sex of the parties involved should be taken into account as sexual comments by a male manager may be more intimidating when directed towards a woman than towards a man."
From U.K. Equal Opportunity Commission, Sexual Harassment: case decisions (2005).
The United Kingdom amended its sexual harassment laws, effective October 1, 2005. U.K. regulations now state that conduct defined as sexual harassment will only be considered as creating “an intimidating, hostile, degrading, humiliating or offensive environment” if such conduct “should reasonably be considered as having that effect.” See The Employment Equality (Sex Discrimination) Regulations 2005, section 5 (Crown Copyright 2005). It is not clear what effect, if any, the new regulations will have on existing case precedent. See U.K. Equal Opportunity Commission, Sexual Harassment: case decisions (2005) (“These cases were decided under the law which applied to incidents which took place before 1 October 2005. The law has changed for incidents which took place since this date. These cases may still be useful, however, since the new definition should include any acts of harassment which would have been unlawful discrimination under the previous law and may, in fact, be wider than the old test.”)
In determining whether hostile work environment sexual harassment has occurred, South African government-sponsored guidelines also adopt a subjective standard for evaluating hostile work environment sexual harassment claims. The guidelines use the viewpoint of the victim as to what behavior is offensive to determine whether a perpetrator's conduct creates a hostile or abusive work environment.
Adapted from The Code of Good Practice on the Handling of Sexual Harassment Cases, National Economic and Labor Council; Deborah Zalesne, Sexual Harassment in the United States and South Africa: Facilitating the Transition from Legal Standards to Social Norms, Harvard Women's Law Journal, Vol. 25, 143, 164 (Spring 2002).
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